CEO 77-148 -- September 22, 1977

CONFLICT OF INTEREST

PUBLIC OFFICER FLYING PRIVATELY OWNED AIRCRAFT ON OFFICIAL BUSINESS AND RECEIVING REIMBURSEMENT

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

Section 112.061(7)(h), F. S. (1976 Supp.), relating to reimbursement for travel expenses incurred by public officers and employees, provides that, where travel is by private aircraft, the traveler shall be reimbursed the actual amount charged up to the cost of a commercial airline ticket for the same flight. The statute on per diem and travel expenses further specifically provides that the provisions of any special law prevail over conflicting provisions in that section. Where the special law creating an airport authority provides that members of the authority shall be reimbursed for the amount of actual expenses incurred, such special law takes precedence over the more general s. 112.061(7)(h). Thus, although the Code of Ethics prohibits a public officer acting in a private capacity from selling any services to his own agency [s. 112.313(3)], no violation is created so long as reimbursement for travel by such officer's private plane is made as provided either in s. 112.061 or in the applicable special law. Similarly, reimbursement for travel in one's private automobile is not in conflict with the Code of Ethics so long as reimbursement does not exceed that permitted by law. There is potential for violation of s. 112.313(6), however, should a public official receive reimbursement for travel expenses greater than that permitted by law.

QUESTIONS:

1. Does a prohibited conflict of interest exist where a member of the Sarasota-Manatee Airport Authority flies a privately owned airplane on official business and is reimbursed for such use?

2. Does a prohibited conflict of interest exist where a member of the Sarasota-Manatee Airport Authority uses his private automobile on official business and receives reimbursement for such use?

Question 1 is answered in the negative, subject to conditions specified later in this opinion.

In your letter of inquiry you advise that Mr. Russell Currin, Jr., is the Chairman of the Sarasota-Manatee Airport Authority. The authority is composed of four members who are elected from the two counties. The chairman, who is a licensed pilot, owns half interest in a private airplane which he uses to travel on official business for the authority. Reimbursement for use of the plane is made to a general contracting corporation in which the chairman owns a half interest, the corporation acting merely in the capacity of a fund custodian and bookkeeper for the two owners of the plane for their convenience.

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

DOING BUSINESS WITH ONE'S AGENCY. -- No employee of an agency acting in his official capacity as a purchasing agent, or public officer acting in his official capacity, shall either directly or indirectly purchase, rent, or lease any realty, goods, or services for his own agency from any business entity of which he or his spouse or child is an officer, partner, director, or proprietor or in which such officer or employee or his spouse or child, or any combination of them, has a material interest. Nor shall a public officer or employee, acting in a private capacity, rent, lease, or sell any realty, goods, or services to his own agency, if he is a state officer or employee, or to any political subdivision or any agency thereof, if he is serving as an officer or employee of that political subdivision. . . . [Section 112.313(3), F. S. 1975.]

This provision prohibits a public officer acting in a private capacity from selling any services to his own agency. In a prior opinion, CEO 76-43A, a copy of which is enclosed, we found that deputy sheriffs were prohibited by this provision from leasing their personal cars to the sheriff's department because the terms of the leases allowed the deputies greater compensation for traveling expenses than allowed by s. 112.061, F. S. 1975, which is the section of the statutes governing the reimbursement of public officers and employees for travel expenses, per diem, etc. Thus, we have already acknowledged that in the area of travel expenses, reimbursement as provided by law does not constitute doing business with one's agency but that reimbursement in excess of that provided by law would violate s. 112.313(3), above, because it would indicate the use of public office for private gain other than the remuneration provided by law. See s. 112.311(1), F. S. 1975.

Reimbursement for travel expenses on private aircraft is provided for in s. 112.061(7)(h), F. S. (1976 Supp.), as follows:

No traveler shall be allowed either mileage or transportation expense when he is gratuitously transported by another person or when he is transported by another traveler who is entitled to mileage or transportation expense. However a traveler on a private aircraft shall be reimbursed the actual amount charged and paid for his fare for such transportation up to the cost of a commercial airline ticket for the same flight, even though the owner or pilot of such aircraft is also entitled to transportation expense for the same flight under this subsection.

In addition, the section on per diem and travel expenses specifically provides that the provisions of any special law, present or future, prevail over conflicting provisions in that section.

As you have advised, the current airport enabling legislation, a special law, provides:

The members of the Authority shall serve without compensation but shall be reimbursed for the amount of actual expenses incurred by them in the performance of their duties.

That special law has been amended to take effect October 1, 1977, and will provide:

The members of the authority shall serve without compensation but shall be reimbursed for the amount of actual expenses incurred by them in the performance of their duties. All travel expenses, subsistence and lodging expenses of members of the authority and of authority employees shall not exceed those prescribed by s. 112.061, Florida Statutes, unless actual reasonable expenses in excess of those prescribed by s. 112.061, Florida Statutes, are specifically authorized prior to the incurring of such expenses by action of the authority taken in a regular monthly meeting in which the question of such expenses appears as a separate item on the agenda.

Thus, so long as reimbursement for travel by private plane is made as provided either in s. 112.061 or in the applicable special law, there would be no violation of s. 112.313(3), F. S.

The Code of Ethics also provides:

MISUSE OF PUBLIC POSITION. -- No public officer or employee of an agency shall corruptly use or attempt to use his official position or any property or resource which may be within his trust, or perform his official duties, to secure a special privilege, benefit, or exemption for himself or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), F. S. 1975.]

We are of the opinion that this provision of the Code of Ethics might also be violated were a public officer to receive reimbursement for travel expenses greater than that allowed by law.

Accordingly, so long as reimbursement for travel expenses does not exceed that permitted by law, we find that the Code of Ethics does not prohibit a public officer from flying his privately owned airplane on official business and receiving reimbursement for such use.

Question 2 is also answered in the negative, subject to certain conditions.

The use of privately owned vehicles for official travel in lieu of public-owned vehicles or common carrier is provided for in s. 112.061(7)(d), F. S. (1976 Supp.). In accordance with the rationale expressed in our answer to your first question, above, we find that so long as reimbursement for travel expenses does not exceed that permitted by law, the Code of Ethics does not prohibit a public officer from using his private automobile on official business and receiving reimbursement for such use.