CONFLICT OF INTEREST; SOLICITATION OR ACCEPTANCE
OF THING OF VALUE; UNAUTHORIZED COMPENSATION

DEPARTMENT OF TRANSPORTATION EMPLOYEE ACCEPTING VOLUNTEER
OPPORTUNITY FROM INDUSTRY ASSOCIATION

To: Name withheld at person’s request (Tallahassee)

SUMMARY:

The Code of Ethics would not prohibit a Florida Department of Transportation (FDOT) employee from accepting an opportunity from an industry association to volunteer his services on a charitable construction project team.
CEO 13-2 is referenced. ¹

QUESTION:

Would the Code of Ethics prohibit an FDOT employee from participating in a charitable construction project coordinated by a transportation related industry association?

Under the circumstances presented, your question is answered in the negative.

Through your letter of inquiry and additional information supplied to our staff, you relate that you are an FDOT employee working as a State Construction Structure Engineer, a position that does not require the disclosure of financial interests pursuant to Section 112.3145, Florida Statutes, and a position that is not that of a “procurement employee” under Section 112.3148, Florida Statutes.² You state that in this position you specialize in the construction of bridge structures and thus have influence over the policies and procedures that govern the work of material suppliers, design engineers, fabricators, inspectors, and construction contractors who perform work on Florida’s State Highway System. You further advise that you have been in communications with the National Steel Bridge Alliance (NSBA),³ a nonprofit transportation-related industry association that is working to assemble a team of qualified volunteers to undertake a charitable bridge construction project in South America overseen by, and in coordination with, the benevolent, nonprofit organization Bridges to Prosperity (B2P).⁴ B2P affords entities such as the NSBA with the ability to participate in its Industry Partnership Program in which the partnering entity provides a prescribed monetary donation directly to B2P in furtherance of its charitable purpose. The donation amount is calculated to defray the cost of bridge construction materials and supplies. Thereafter the respective industry partner is able to coordinate the selection of a project team and participate in the charitable project itself. However, project team members provide their expertise on a volunteer basis and thus receive no compensation for their service. Moreover, individual team members are responsible for paying the full cost of their respective transportation, food, and lodging expenses incurred pursuant to their participation in the project.

Communications with NSBA employees indicate that the NSBA is seeking to participate in B2P’s Industry Partnership Program and thus has committed to donate the applicable partnership funds. The NSBA also is coordinating the selection of a B2P team of technical experts, including yourself, comprised largely of department of transportation employees from different states as well as some NSBA personnel.

The Code of Ethics for Public Officers and Employees provides in relevant part:

SOLICITATION OR ACCEPTANCE OF GIFTS.—No public officer, employee of an agency, local government attorney, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, local government attorney, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes]

UNAUTHORIZED COMPENSATION.—No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer, employee, or local government attorney was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes]

In the instant matter, the NSBA has approached you with an opportunity to participate on a B2P project team in an uncompensated, volunteer capacity. Although the NSBA, as a prospective participant in B2P’s Industry Partnership Program, has committed to providing a charitable donation directly to B2P, it has not offered nor does it intend to contribute any funds towards the payment of your transportation, hotel accommodation, or food and beverage costs during the pendency of the project. Nor does it intend to reimburse you for any of these expenses. Rather, you confirmed that you intend to cover the full cost of your expenses incurred during the project and that you further intend to use annual leave while you are volunteering on the B2P project. Thus, under the circumstances you present the “thing of value” being offered by the NSBA to you is the opportunity to donate your expertise, time, and services to a charitable organization.

Section 112.313(2), Florida Statutes, prohibits a public officer from soliciting or accepting anything of value base upon an understanding that his or her official action will be influenced. It is not inconceivable that an opportunity to participate in a charitable endeavor could be used or offered as a quid pro quo for official action. CEO 13-2. In the facts before us, however, there is no indication that you solicited the opportunity to participate on the NSBA’s B2P bridge project team with the understanding that your official action or judgement would be influenced in violation of Section 112.313(2), Florida Statutes, or that there otherwise is a quid pro quo within the meaning of the statute.

Section 112.313(4), Florida Statutes, prohibits a public officer from accepting anything of value when the officer knows, or with the exercise of reasonable care should know, that it was given to influence some action in which the employee was expected to participate in his official capacity. Although the NSBA is an association formed for the purpose of advancing the use of steel in bridge construction, there is no indication from the facts involved herein that the opportunity to volunteer your services on a B2P charitable project team was afforded to you by the NSBA with the intention of influencing your decision-making authority regarding the selection of materials for bridge structures in your capacity as a State Construction Structure Engineer with FDOT.⁵

Accordingly, under the scenario presented, we find that the Code of Ethics would not prohibit your acceptance of an offer from an industry association to volunteer your services on a charitable bridge construction project team.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 11, 2015, and RENDERED this 16th day of December, 2015.

____________________________________

Stanley M. Weston, Chair

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]As you are neither a reporting individual nor a procurement employee the additional gifts restrictions contained in Section 112.3148, Florida Statutes, are not applicable in the instant matter.

^[3]The NSBA, a division of the American Institute of Steel Construction (AISC), is a national, nonprofit organization dedicated to advancing steel bridge design and construction. The NSBA is not a lobbyist or the principal of lobbyists registered to lobby in Florida nor is it a vendor of the FDOT.

^[4]B2P is a U.S. based 501(c)(3) nonprofit organization that works with corporate partners to coordinate financial support for projects and develop teams of volunteers with technical expertise in the engineering field to build bridges in developing countries.

^[5]As you have no contractual or employment relationship with either the NSBA or B2P, Section 112.313(7)(a), Florida Statutes, which prohibits you from having an employment or contractual relationship with any business entity regulated by or doing business with the FDOT, or any contractual relationship which would give rise to a continuing or frequently recurring conflict or impediment to your public duty performance, is inapplicable here. Section 112.313(7)(a) provides: