CEO 78-52 -- September 8, 1978

CONFLICT OF INTEREST

TENANT SELECTION COORDINATOR FOR COUNTY HOUSING AUTHORITY ACCEPTING PROPOSED TESTAMENTARY GIFT FROM TENANT OF HOUSING AUTHORITY

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(2)(b), F. S. 1977, prohibits a public employee from accepting any gift that is based upon any understanding that his official action or judgment would be influenced thereby. This statute would not be violated were a tenant selection coordinator for a county housing authority to accept a testamentary gift from a tenant of the authority so long as no such understanding exists. The Code of Ethics further provides in s. 112.313(4) that a public employee is prohibited from accepting anything of value when he knows or, with the exercise of reasonable care, should know that it was meant to influence any official action in which he is expected to participate. Because the tenant selection coordinator's responsibilities are limited to ascertaining applicants' and clients' eligibility for public housing, and in the absence of any evidence of intent to influence said coordinator, her acceptance of the proposed testamentary gift, under the facts presented, is not deemed to constitute a violation of the Code of Ethics for Public Officers and Employees.

QUESTION:

Would a prohibited conflict of interest be created were a tenant selection coordinator for a county housing authority to accept a testamentary gift from a tenant of the housing authority?

Your question is answered in the negative.

In your letter of inquiry you advise that ____ is the tenant selection coordinator for public housing for the ____ County Housing Authority. In addition, you advise that a tenant of the housing authority has proposed a testamentary gift consisting of several items of personal property to the subject housing authority employee as a result of the kindness and concern exhibited by her. You also have enclosed a copy of the letter to the subject employee which proposes this gift.

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

(2) 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:

(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.

(4) UNAUTHORIZED COMPENSATION. -- No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee 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 or employee was expected to participate in his official capacity. [Section 112.313(2)(b) and (4), F. S. 1977.]

We are of the opinion that the first provision quoted above would be violated only when a public officer or employee has reached an agreement or understanding with the donor that his or her official action would be influenced by the acceptance of the gift or other thing of value. Under the circumstances you have related, there does not appear to have been any agreement or understanding between the subject housing authority employee and the tenant regarding the performance of the employee's responsibilities. On this basis, we find that s. 112.313(2)(b) would not be violated were the subject employee to accept the proposed testamentary gift.

The second provision quoted above prohibits a public officer or employee from accepting anything of value when he or she knows, or, with the exercise of reasonable care, should know that it was given to influence his or her official action. This provision similarly requires knowledge on the part of the public employee, or circumstances which strongly suggest, that a particular gift is being given with the intent that the employee's future official actions will be influenced. It is with this in mind that we have examined the job description of the tenant selection coordinator for the housing authority. From that job description, it appears that the tenant selection coordinator is an administrative employee of the housing authority, responsible for determining the eligibility of applicants for public housing and for certifying the continued eligibility of present tenants of the housing authority. Among other responsibilities, the tenant selection coordinator processes and prepares complaints for removal of tenants with followthrough on dismissals and evictions.

Given the circumstances of this situation and considering the intent of the tenant as expressed in her letter to the subject employee, we cannot find that the proposed testamentary gift is being offered based upon any understanding that the employee's official action will be influenced; nor can we find that the subject employee knows or with the exercise of reasonable care should know that it is being offered to influence any official action in which she is expected to participate. Accordingly, we find that under the facts presented, the Code of Ethics for Public Officers and Employees would not be violated were the subject housing authority employee to accept the proposed testamentary gift from the tenant of the housing authority.