CEO 80-27 -- April 17, 1980

CONFLICT OF INTEREST

UNIVERSITY ADMINISTRATOR RECEIVING FREE MEALS FROM FOOD SERVICE COMPANY CONTRACTING WITH UNIVERSITY

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(4), F. S., prohibits a public officer or employee, or 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 in which he was expected to participate. This provision of the Code of Ethics places the burden upon a public officer or employee to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his official action. When the donor is in a position to be benefited by the officer's or employee's action, the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given.

When a state university administrator is offered a "gift card" by the food service company contracting with the university, which card entitles its holder to an unlimited number of free meals at any one of the company's eating establishments, the ostensible purpose of the cards, i.e., review of the company's service, should clearly negate the possibility that they have been given to influence decisions of the administrators. This does not appear to be the case. Rather, it appears that even the ostensible purpose would influence the course of future contract reviews or negotiations. Under these circumstances, a prohibited conflict of interest would be created were such administrators to receive free meals by use of the "gift card" from a food service company which has contracted with the university.

QUESTION:

Would a prohibited conflict of interest be created were I, a university administrator, to receive free meals from a food service company which has contracted with the university?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that, as Vice President for Administrative Affairs of Florida International University, you have indirect responsibility for overseeing the food service contract between the university and the corporation which has been awarded the contract. More specifically, your authority extends over the director of auxiliaries and the head of the university's purchasing department, and both people oversee the day-to-day administration of that contract. You also advise that recently six top administrators of the university, including yourself, received "gift cards" from the food service corporation; each card allows its holder to eat without charge at any one of the corporation's establishments. In addition, you advise that, when you were given your card, the company's representative stated that these cards had been given to administrators at other universities serviced by the company and that the cards were being given in order to encourage top university management to eat at the company's facilities and to review its service. As part of this review, the company has asked that each cardholder participate in one yearly written survey.

Of the six persons receiving these cards, you advise, only three have any responsibility over the awarding of the contract or the performance of the contract: you, the president of the university, and the director of auxiliaries. In this respect, you advise that the director of auxiliaries is responsible for the day-to-day administration of the contract and that he and a committee composed of faculty, staff, and student representatives review food service contract proposals and make a recommendation to the president. It is the president who authorizes the contract and who, in this case, authorized you to sign the contract with the food service corporation. Finally, you advise that it is the opinion of the administrators that these cards would in no way influence their official actions or judgment and that, since the cards would not be used frequently, they would result in little financial benefit.

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:

That is based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Section 112.313(2)(b), F. S.]

This provision prohibits a public employee from accepting any gift, such as a free meal, which is based upon the understanding that his official action or judgment would be influenced. On the basis of the facts you have presented, it does not appear that there is any understanding between you and the food service corporation to the effect that your judgment would be influenced by virtue of the "gift card." Therefore, this provision of the Code of Ethics would not prohibit your receipt or use of the card.

The Code of Ethics also provides as follows:

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(4), F. S.]

Under this provision, we must determine whether you know, or with the exercise of reasonable care should know, that the gift card was given to influence some action in which you are expected to participate in your official capacity. We note that you have given no indication that you know that the gift card was given to influence your official action. Therefore, we must determine whether, with the exercise of reasonable care, you should know that the gift card was given to influence some official action in which you are expected to participate.

The word "influence" has been defined as: "To affect, modify or act upon by physical, mental or moral power, especially in some gentle, subtle, and gradual way." [Black's Law Dictionary (5th ed., 1979).]

Webster's Seventh New Collegiate Dictionary (1971) defines the word as meaning "to affect or alter by indirect or intangible means: sway." Thus, something of value given with the intent to influence one's official action would include things given in order to directly and obviously affect an official action as well as those things given with the intent to affect official decisionmaking in a more subtle manner.

Section 112.313(4), quoted above, places the burden upon a public officer or employee to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his official action. Assuming the donor is in a position to be benefited by the officer's or employee's action, the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given. The larger its value, the more difficult it should be to justify its being given for any reason except to influence.

Here, the gift card is of potentially great value, entitling the bearer to an apparently unlimited number of free meals. Accordingly, the ostensible purpose of the cards should clearly negate the possibility that the cards have been given to influence the decisions of the administrators receiving them. It does not appear to us that this is the case. Instead, it appears that even the ostensible purpose of the cards would influence the course of future contract reviews or negotiations. Written review of food services by administrators who receive free meals, in our view, would influence the official responsibilities of the administrators. Certainly, if the food services were to be rated highly by top administrators, it would be more difficult for lower administrators to objectively review the company's work. In addition, we note that three of the administrators receiving the cards are themselves directly or indirectly involved in awarding and reviewing the contract.

Accordingly, under the circumstances you have presented, we find that a prohibited conflict of interest would be created were you to receive free meals by use of a "gift card" from a food service company which has contracted with the university.