CEO 76-102 -- June 17, 1976

CONFLICT OF INTEREST

STATE EMPLOYEE MAY ACCEPT EXPENSE-PAID TRIP FROM NONREGULATED INDUSTRY FOR STATE-RELATED PURPOSE

To: Al L. Baker, Executive Director, Department of Business Regulation, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

No prohibited conflict of interest is deemed to be created where the Director of the Division of Pari- mutuel Wagering, Department of Business Regulation, and an auditor from the division travel to Spain at the expense of a private electrooptical corporation to participate in the programming of a pari-mutuel totalisator purchased by a racetrack in the state. The Code of Ethics prohibits the acceptance of any gift that would cause a reasonably prudent person to be influenced in the discharge of his official duties. This provision has been declared unconstitutional, however, by the First District Court of Appeal, re Case No. X-370, January term, 1976. The code further prohibits the acceptance of any gift which is offered with the understanding that one's official action would be influenced thereby. In the instant case, however, there is no evidence of such understanding. Moreover, the division regulates the racetrack rather than the private manufacturing firm, and the purpose of the trip is not related to the potential sale of equipment, as such sale has been completed. Rather, division personnel will serve as consultants to insure that programming of the totalisator meets division specifications. Such trip would not, in our view, alter the independence or impartiality of division employees in the discharge of their regulatory duties.

QUESTION:

Would a conflict of interest under the Code of Ethics for Public Officers and Employees be created were two employees of the Division of Pari-mutuel Wagering within my department to travel to Spain at the expense of a private electrooptical corporation to serve as consultants on division rules and regulations in the programming of a pari-mutuel totalisator system purchased by a racetrack in the state?

Your question is answered in the negative.

It is our understanding, based on your letter of inquiry and accompanying materials, that Pompano Park Raceway recently has purchased complex computer equipment manufactured by Cierva Electrooptical Corporation of Madrid, Spain. The equipment, designed to serve as a pari-mutuel totalisator system, is being programmed at the company's assembly plant in Madrid. Cierva Electrooptical, via Mr. Hector Van Lennep, Vice President and General Manager of Pompano Park Raceway, has requested that Mr. J. Patrick McCann, Director of the Division of Pari-mutuel Wagering, fly to Spain at Cierva's expense to assist in the programming of the system so as to insure that it will comply with state pari-mutuel regulations. Mr. McCann has advised that, should such travel be approved, he would make the trip, as decisionmaking authority for the division, and would take with him for technical assistance an experienced chief auditor with the division.

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 First District Court of Appeal in January of this year, re Case No. X-370, found the language in paragraph (a) of the above- quoted provision to be unconstitutionally vague. Pending possible rehearing, appeal, or legislative revision, therefore, that provision may not be applied to the case at hand. Looking to paragraph (b) of the above, there is no evidence that the proposed trip was offered with the understanding that the official action or judgment of division employees would be influenced thereby. Accordingly, we find no violation of Fla. Stat. s. 112.313(2)(b) in acceptance of the above-described travel. For the same reason s. 112.313(4), prohibiting the acceptance of any compensation designed to influence official action, would not be breached, based on the facts before us.

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 . . . ." Fla. Stat. s. 112.311(1)(1975). In a previous opinion of this commission, CEO 75-21, we found that such independence and impartiality would be threatened were members of a state regulatory board to accept an invitation to visit the facilities of a regulated industry at that industry's expense. In the instant case, however, the division regulates the raceway, not the equipment manufacturer which will bear the travel expenses. Furthermore, the purpose of the trip is not related to the potential sale of equipment, as such sale has been completed; rather, division personnel will serve as consultants to insure that programming of the product meets division specifications. We do not perceive that the performance of this service, which would benefit the division as well as the manufacturer and the raceway, would alter the independence or impartiality of participating division employees in the discharge of their regulatory responsibilities.