CEO 76-43A -- October 25, 1976

(Reconsideration of CEO 76-43)

RECONSIDERATION OF CEO 76-43

To: Don R. Moreland, Sheriff, Marion County, Ocala

Prepared by: Bonnie Johnson

SUMMARY:

The lease of deputies' personal vehicles by a sheriff's department for official use constitutes a conflict of interest.

QUESTION:

(See CEO 76-43 for question.)

As you are aware from having attended our meeting of May 12, 1976, upon reconsideration of the above-captioned CEO 76-43, we hereby reverse our finding of no conflict of interest in your department's leasing of deputies' personal cars for official use. Our decision to reverse this finding and to deem such transactions to constitute a conflict of interest prohibited by Florida Statute s. 112.313(7)(1975) is based on the following rationale.

Although we believe now, as we did previously, that the subject lease arrangement serves the public interest in many respects, the intent of the Code of Ethics is to prohibit a public officer or employee from benefiting privately as a result of his public position. In this sense, s. 112.313(7) constitutes a specific provision in furtherance of the following statement of legislative intent:

It is essential to the proper conduct and operation of government that public officials be independent and impartial and that public office not be used for private gain other than the remuneration provided by law . . . . [Emphasis supplied; Fla. Stat. s. 112.311(1)(1975).]

Toward this end, s. 112.313(7) prohibits a public officer or employee from "acting in a private capacity [to] rent, lease, or sell any realty, goods, or services to his own agency . . . ."

Read in conjunction, these two provisions contemplate that private transactions between a public official and his agency provide personal gain beyond the terms of public office or employment. Based on the information provided by your department, there is no doubt that deputies who participate in the lease program enjoy the personal benefit of being provided automobile tires as well as gasoline and oil for all in-county travel, public and private. Accordingly, the subject lease arrangement provides to participating deputies benefit or remuneration other than that provided by law.

We hasten to emphasize that this opinion should not be construed to forbid the use of one's personal vehicle for public business. Such use is tacitly approved in certain circumstances, in fact, by the provisions of Florida Statute s. 112.061 relating to reimbursement for travel expenses incurred while on public business. The very purpose for the enactment of this statute, however, was to standardize and regulate the payment of travel expenses. Subsection (1) of s. 112.061 provides in pertinent part:

LEGISLATIVE INTENT. -- There are inequities, conflicts, inconsistencies and lapses in the numerous laws regulating or attempting to regulate traveling expenses of public officers, employees, and authorized persons in the state. It is the intent of the Legislature:

(a) To remedy same and to establish uniform maximum rates, and limitations, with certain justifiable exceptions, applicable to all public officers, employees, and authorized persons whose traveling expenses are paid by a public agency.

(b) To preserve the standardization and uniformity established by this law[.]

Toward this end, the section stipulates that where privately owned vehicles are used for official travel,

the traveler shall be entitled to a mileage allowance at a fixed rate not to exceed 14 cents per mile or the common carrier fare for such travel, to be determined by the agency head. Reimbursement for expenditures relating to the operation, maintenance, and ownership of a vehicle shall not be allowed when privately owned vehicles are used on public business and reimbursement is made pursuant to this paragraph . . . . [Fla. Stat. s. 112.061(7)(d)1.(1975).]

Where the computation of actual mileage proves impractical, an alternative reimbursement plan is authorized as follows:

The agency head may grant monthly allowances in fixed amounts for use of privately owned automobiles on official business in lieu of the mileage rate provided in paragraph (d) of this subsection. Allowances granted pursuant to this paragraph shall be reasonable, taking into account the customary use of the automobile, the roads customarily traveled, and whether any of the expenses incident to the operation, maintenance, and ownership of the automobile are paid from funds of the agency or other public funds. Such allowance may be changed at any time, and shall be made on the basis of a signed statement of the traveler, filed before the allowance is granted or changed, and at least annually thereafter. The statement shall show the places and distances for an average typical month's travel on official business, and the amount that would be allowed under the approved rate per mile for the travel shown in the statement, if payment had been made pursuant to paragraph (d) of this subsection. [Fla. Stat. s. 112.061(7)(f)(1975).]

The requirement that a signed statement showing an average month's travel on official business be submitted prior to reimbursement strongly suggests that one should receive no reimbursement for travel unrelated to public duty. The opportunity for personal gain is further foreclosed by subsection (g) of that same provision, which states that

[n]o contracts may be entered between a public officer or employee, or any other person, and a public agency, in which a depreciation allowance is used in computing the amount due by the agency to the individual for the use of a privately owned vehicle on official business; provided, any such existing contract shall not be impaired.

In summary, existing laws relating to the situation at hand allow for reimbursement to a public official of expenses legitimately incurred in the line of public duty, and specific statutes establish standard procedures for making such payments. But the receipt of benefits from public moneys for goods or services unrelated to public duty is prohibited. Consequently, we hereby reverse our position taken in CEO 76-43 and find that a conflict of interest pursuant to s. 112.311(1) and s. 112.313(7) is created by the subject leasing arrangement. Contracts entered into prior to May 12, 1976, the date on which we advised you of our reconsideration, are valid, however, until such time as they expire.