CEO 76-71 -- April 16, 1976

CONFLICT OF INTEREST

STATE EMPLOYEE PARTICIPATING IN HOTEL PROMOTION PROGRAM

To: C. E. McNeely, Assistant to the Secretary, Department of Transportation, Tallahassee

Prepared by: Gene Rhodes

SUMMARY:

Florida Statute s. 112.313(2)(1975), entitled "Solicitation or Acceptance of Gifts," prohibits a public officer or employee from accepting anything of value to the recipient "that would cause a reasonably prudent person to be influenced in the discharge of his official duties." A hotel promotional program which rewards program participants with gifts ranging from free cocktails to trips, based on the number of reservations arranged with the hotel, in our view would influence a state employee to favor such hotel over others. Where a public employee is charged with the responsibility to arrange hotel accommodations or food functions at government expense, such arrangements should be based solely on considerations of cost and convenience. Where one is tempted by the promise of personal reward to favor one establishment over another, as we believe would be the case for participants in the subject program, the potential for disregard of the public interest is great. Accordingly, such participation by a state employee would violate the prohibition set forth in s. 112.313(2).

QUESTION:

Would a prohibited conflict of interest be created were a state employee to participate in a promotional program sponsored by a hotel chain whereby program participants are rewarded for booking accommodations and food services with hotels in the chain?

Your question is answered in the affirmative.

You have advised us that a brochure printed and disseminated by Hilton Hotels, Inc., advertising the corporation's "Ms. Hilton" promotional program, has been received in your office. You wish to ascertain the propriety, under the Code of Ethics for Public Officers and Employees, of participation in such program by persons in your employ.

The advertisement brochure promoting the "Ms. Hilton" club describes various privileges and rewards available and potentially available to members. These benefits include free use of Hilton Hotel pools, invitations to fashion shows and parties, and a proposed plan for receiving discounts at retail stores and shops. The program further includes a point system whereby participants accrue points for making reservations and arranging food functions at a hotel in the chain, the number of points being based on the number of people served. Accumulated points may be cashed in for rewards which include, but are not limited to, free cocktails and meals at a Hilton hotel, gift certificates at local shops, overnight accommodations at a Hilton, use of a leased automobile for 1 year, and trips -- including, for 5,000 points, a trip around the world.

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

SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer or employee of an agency 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:

(a) That would cause a reasonably prudent person to be influenced in the discharge of official duties.

(b) That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Fla. Stat. s. 112.313(2)(1975).]

The above-quoted provision prohibits a public employee from accepting anything of value, including a reward, that would cause a reasonably prudent person to be influenced in the discharge of his or her official duties. In our view, this provision would be breached by a public employee's membership in the above-described hotel promotion program.

Where a public employee is charged with the responsibility to arrange hotel accommodations or food functions at government expense, such arrangements should be based solely on considerations of cost and convenience. Where one is tempted by the promise of personal reward to favor one establishment over others, the potential for disregard of the public interest is, in our view, great. The nature of the benefits available to members of the subject club is such that a public employee who participates in the program would certainly stand to gain something of value and most likely would be influenced, either blatantly or subtly, in the discharge of official duties.

In its statement of legislative intent and declaration of policy, the Code of Ethics provides that "[i]t 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 remuneration provided by law." Fla. Stat. s. 112.311(1)(1975). With this statement in mind, we believe the term "influence" must be read to mean the alteration of a public servant's independence and impartiality of judgment. In the instant case, we feel that an employee who participates in the promotional program would lose a degree of his or her impartiality and therefore would be influenced in the discharge of official duties. By sponsoring this reward-oriented program, the subject corporation will be creating an impression on program participants distinguishable from that of competing hotels and restaurants not providing such gifts. Due to these rewards or promise thereof, participating public employees would in our view consciously or unconsciously be influenced in the discharge of their official duties. Participation by a state employee in such programs therefore would violate both the spirit of the Code of Ethics and the letter of s. 112.313(2)(1975).