CEO 76-43 -- February 13, 1976

(Reconsidered; see CEO 76-43A)

CONFLICT OF INTEREST

SHERIFF'S DEPARTMENT LEASING DEPUTIES' CARS FOR OFFICIAL USE

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

Prepared by: Bonnie Johnson

SUMMARY:

Although Fla. Stat. s. 112.313(3)(1975) prohibits a public employee from acting in a private capacity to lease goods to his own agency, where a deputy sheriff enters into a contract to lease his personal automobile to the sheriff's department he is deemed to be acting in his public rather than private capacity. The lease program is designed to benefit the public in terms of economy, availability of vehicles, and convenience; and it is due to one's unique employment as a deputy sheriff, rather than as a private citizen, that he participates in the leasing program. Consequently, no violation of the conflicting business provision of the Code of Ethics is deemed to exist.

QUESTION:

Does a prohibited conflict of interest exist under the Code of Ethics for Public Officers and Employees where a county sheriff leases, on behalf of the department, the personal automobiles of his deputies for official use?

Your question is answered in the negative.

You advise us in your letter of inquiry that the subject lease program was instituted in 1970-1971 under your predecessor's term of office. At the time you took office in January of 1973, the lease plan was frozen pending a staff study to determine the feasibility of continuing such operation. The Staff Study on Vehicles, dated March 19, 1973, revealed that the cost to furnish company-owned vehicles was approximately 10 percent less than the cost of continuing the lease program. However, it was determined that other benefits of the lease arrangement offset the additional cost. Quoting from the information provided in your letter of inquiry, these benefits were deemed to be as follows:

1. More vehicles would be on the road at all times. Theoretically increased patrol should decrease crime.

2. Officers off duty would be available for emergency calls every time they are in their vehicle.

3. Actually more vehicles would be available for departmental use. Even though the study showed an increase of 10% cost with the lease plan, the lease plan contained 38 vehicles and the company owned plan had only 26 vehicles.

4. Each officer would be able to keep his personal effects in his vehicle at all times. This would eliminate the need for lockers at the Sheriff's Department. There are 7 lockers currently at the County Jail to accommodate approximately 60 officers.

5. If an emergency were to arise, transportation problems would be solved since each officer would have his own vehicle. He would also be able to respond directly to the scene, instead of reporting first to the station.

6. Officers take better care of the vehicles, since they know they must pay for all repairs not covered by insurance. Preventive maintenance is performed more regularly than with the county owned vehicles.

7. Morale is greatly enhanced.

You report that, at present, 41 persons participate in the lease program, all on a voluntary basis. The current lease agreement is essentially the same as the original one, the provisions of which are as follows:

1. The officer would obtain a vehicle which met certain minimum specifications. The vehicle was actually purchased by the officer and he arranged his own financing.

2. The officer agreed to:

a. Keep the car in good mechanical condition and pay for all repairs.

b. Pay the first $100.00 for repairs to the vehicle if the vehicle was damaged in an accident, if the damage was not covered by insurance. Originally our collision coverage had a $100.00 deductible and this was the amount the officer had to pay.

c. Pay all expenses when the vehicle was used outside the county. Primarily this amounts only to gasoline and oil.

d. Remove all Sheriff's insignia and equipment in the event the car is sold or the Deputy terminates employment with the department.

3. The Sheriff agreed to:

a. Pay the lessee $150.00 per month if the vehicle was a marked patrol unit.

b. Pay the lessee $125.00 per month if the vehicle was an unmarked patrol unit. Unmarked vehicles are primarily driven by Patrol Division Supervisors, Investigators, and officers assigned to the Civil Division.

c. Furnish all insurance, gas, oil, tires, batteries, radio, screen, and paint job.

d. Pay for change over of equipment when a new car was purchased by the officer.

e. Allow the officer to use the vehicle for his personal use within the county, at the department's expense.

In addition to these original provisions, the current lease agreement stipulates the following:

a. The vehicle will not be driven by anyone other than the assigned deputy.

b. The vehicle will not be used to pull utility trailers, boats, or for any other use that would bring discredit to the Marion County Sheriff's Department.

c. The interior or exterior of the vehicle will not be altered nor will extra or special equipment be added to the vehicle unless prior approval is given by the Sheriff in writing.

d. The Sheriff or his representative will have the right to inspect the vehicle at any time and to require that the vehicle meet high standards of cleanliness.

e. The vehicle shall be no more than four (4) years old and will be placed in the shop immediately, if it should have mechanical trouble.

The Code of Ethics for Public Officers and Employees, as revised by the 1975 Legislature, provides in relevant part:

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 . . . . [Emphasis supplied; Fla. Stat. s. 112.313(1975).]

This provision clearly prohibits a public employee from acting in a private capacity to lease goods to his own agency. In the instant case, however, we do not feel that the deputies' leasing of their cars is transacted in their "private" capacities within the intent of the above-cited provision of the Code of Ethics. Rather, it is due to one's unique employment as a deputy sheriff that the lease opportunity presents itself, and it is as a deputy sheriff, rather than as a private citizen, that he participates in the leasing program. It is therefore our view that those deputies who participate in the leasing program are acting in their public capacities as employees of the sheriff's department. Consequently, we perceive no violation of Fla. Stat. s. 112.313(3)(1975).