CEO 80-4 -- January 17, 1980

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES EMPLOYEES ACCEPTING GIFTS FROM SHELTER HOME PARENTS

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

Prepared by: Phil Claypool

SUMMARY:

A public employee is prohibited by the Code of Ethics from soliciting or accepting anything of value that is based on any understanding that his vote, official action, or judgment would be influenced by such gift. Section 112.313(2)(b), F. S. Similarly, s. 112.313(4) prohibits a public employee, his spouse, or minor child from accepting anything of value when he knows, or with the exercise of reasonable care should know, that it was given to influence any official action. Absent any such understanding on the part of Department of Health and Rehabilitative Services employees who work with shelter homes for dependent children at the time they accepted various gifts valued at $225 and $230 from shelter home parents, the Code of Ethics cannot be said to have been violated. As the acceptance of such gifts may give the appearance of misuse of public position, however, the department is urged to consider the impact of such appearances upon the effectiveness of a program and perhaps to address such activity by departmental rule.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit employees of the Department of Health and Rehabilitative Services who work with shelter homes for dependent children from accepting gifts from shelter home parents?

In your letter of inquiry you advise that two Department of Health and Rehabilitative Services (D.H.R.S.) employees involved in the department program of shelter homes for dependent children received gifts in 1977 and 1978 from shelter home parents. A former caseworker, who is presently a district intake supervisor and who works closely with shelter homes, received a 1977 Christmas gift consisting of a $230 gift certificate. The gift certificate was given in order to assist the supervisor's husband in replacing a camera which allegedly had been stolen by a dependent child at a picnic given for shelter parents, staff, and dependent children in late 1977. Contributions toward the gift certificate were given by 8 to 10 shelter home parents and several D.H.R.S. employees, you advise. This supervisor also received a gift certificate of approximately $225 toward the purchase of a microwave oven for a 1978 Christmas gift. In addition, you advise, a social worker working closely with shelter homes received a wedding gift of a microwave oven costing approximately $225; contributions toward this gift came from shelter home parents as well as from D.H.R.S. employees.

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.]

It is apparent from these provisions that the Code of Ethics does not flatly prohibit department employees from accepting gifts from shelter home parents with whom they are involved professionally. Rather, these provisions prohibit the acceptance of gifts or things of value when solicited or received under certain circumstances.

In the past we have advised that the first provision quoted, s. 112.313(2)(b), F. S., would be violated only when a public officer or employee has reached an agreement or understanding with the donor that his or her official actions would be influenced by the acceptance of the gift. In this respect, you advise that the shelter home parents were interviewed by a department employee whose report indicates that none of the shelter home parents, with the exception of one person, felt that their actions were involuntary or were based upon any understanding that an action by an employee would be influenced thereby. That one person, we are advised, did feel that she was pressured by the other shelter home parents into giving a Christmas gift because she felt that, if she did not contribute, the employee who was receiving the gift would find out and perhaps would not place dependent children in her home. This person did indicate, however, that she willingly donated toward the wedding gift for the social worker and felt that the gift was appropriate. Under these circumstances, there does not appear to have been any agreement or understanding between the subject department employees and the shelter home parents regarding the performance of the employees' responsibilities. On this basis, we find that s. 112.313(2)(b) was not violated by the subject employees.

The second provision, s. 112.313(4), F. S., 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. Having examined the circumstances of these gifts as presented in the materials accompanying your letter of inquiry, we are unable to conclude that the gifts were accepted based upon the understanding that the employees' official actions would be influenced; nor can we find that the employees knew or with the exercise of reasonable care should have known that the gifts were being offered to influence decisions regarding the placement of dependent children.

Accordingly, we find that, under the facts presented, the Code of Ethics for Public Officers and Employees was not violated when the subject Department of Health and Rehabilitative Services employees accepted gifts from shelter home parents with whom they had been working. Nevertheless, we observe that the acceptance of such gifts, even when donated in the highest spirit of admiration and affection, may give the appearance of the misuse of a public employee's position or an attempt to curry favor with an employee. While the appearance of impropriety is not prohibited by the Code of Ethics, we urge the Department of Health and Rehabilitative Services to consider the impact of such appearances upon the effectiveness of a program and perhaps to address such activity by departmental rule.