CEO 81-44 -- June 18, 1981

CONFLICT OF INTEREST

EMPLOYEE OF COUNTY HOUSING AUTHORITY USING COUNTY VEHICLE TO TRANSPORT RELATIVE

To: Mr. Douglas A. Wallace, Attorney, Manatee Housing Authority

SUMMARY:

The propriety of a housing authority employee's use of a county vehicle to transport a relative to and from work should depend more on the nature of an express policy developed by the housing authority regarding the use of publicly-owned vehicles than on the provisions of the Code of Ethics. Such a policy would indicate whether the employee's actions were inconsistent with the proper performance of his public duties under Section 112.313(6), Florida Statutes, which prohibits the corrupt use or attempted use of official position to secure a special privilege or benefit for oneself or others.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit an employee of a County Housing Authority from using a County vehicle to transport a relative to and from work?

In your letter of inquiry you advise that an employee of the Manatee Housing Authority who previously served as Comptroller recently has been elevated to the position of Acting Executive Director. This position carries with it the use of a County vehicle for travel to and from the Housing Authority office and while on official business. Prior to accepting the position of Acting Executive Director, you advise, the subject employee had car-pooled with his sister. You advise that he has continued to take her to and from work using the County vehicle since assuming the position of Acting Executive Director. The subject employee lives near his sister's home, you advise, and her place of employment is close to the offices of the Housing Authority; thus, the employee estimates that he does not drive more than 800 yards out of his way each day in taking his sister to her place of employment and returning her to her home in the evening.

Initially, we note that public funds may be expended only for a valid public purpose or function expressly or impliedly authorized by law, and not for solely a private purpose. See, for example, AGO 075-299. This principle may be applicable in the situation you have referenced. In addition, we note that at the State level, the Florida Department of General Services regulations generally prohibit the use of a State vehicle to transport private persons. Rule 13B- 3.04(1)(e), F.A.C.

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

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), Florida Statutes (1979).]

The term "corruptly" is defined to mean

done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his public duties. [Section 112.312(7), Florida Statutes (1979).]

As we observed in a previous opinion, CEO 77-129, this statute requires a determination of intent which is extremely difficult to make while rendering an advisory opinion, since intent is to be determined from an examination of all relevant circumstances. We are able to do this when a complaint has been filed concerning a given situation on the basis of evidence presented through investigation and hearing, but in rendering an advisory opinion we are handicapped by a lack of access to information concerning all the circumstances of the situation as well as information concerning the credibility of the individuals involved. Therefore, we will not make a final determination as to whether the subject employee has or has not violated Section 112.313(6), Florida Statutes. We will comment on the possible application of this statute to the situation you have presented, however.

In situations which appear similar we have found that Section 112.313(6), Florida Statutes, would be violated. Examples of this would include Complaint No. 80-32, In re Carole Estrada, involving the use of a public vehicle for strictly private purposes, and Complaint No. 80-38, In re Ralph Miller, involving the use of a County-owned bulldozer on private property.

The use of a County vehicle by the subject employee constitutes the use of property or resources within his trust. By allowing the employee's sister to ride with him, he has secured a special privilege or benefit for her. The benefit is "special," because it has been made available only to the employee's sister and not to all persons. As you have not referenced any policy of the Housing Authority regarding the use of vehicles for transportation of persons other than Authority employees, we assume that the Authority has not adopted such a policy, which would indicate whether the employee's actions were inconsistent with the proper performance of his public duties.

In our view, the propriety of the particular situation you have described should depend more on the nature of an express policy developed by the Housing Authority regarding the use of publicly- owned vehicles than on the provisions of the Code of Ethics for Public Officers and Employees. Such a policy, of course, should not contradict State law. Accordingly, although we have been unable to provide you with a final answer to the question you have posed, we hope that our observations have been of some assistance to you.