CEO 79-3 -- January 18, 1979

CONFLICT OF INTEREST

TRAVEL REIMBURSEMENT FOR ON-DUTY USE OF PRIVATE VEHICLES OWNED BY DEPUTY SHERIFFS

To: Newton H. Murdock, Hardee County Sheriff, Wauchula

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 76-43A, in which it was advised that a lease program whereby deputy sheriffs would lease their privately owned automobiles to the sheriff's department would violate s. 112.313(3), F. S. 1977, prohibiting a public officer or employee from doing business with his public agency. It was further advised in that opinion, however, that Florida law expressly provides for reimbursement of expenses incurred for the use of one's personal vehicle for public business, either by a fixed mileage allowance not to exceed 14 cents per mile [s. 112.061(7)(d)1., F. S. (1978 Supp.)], or by a fixed monthly allowance based on a typical month's travel on official business [s. 112.061(7)(f)]. When a sheriff enters into an agreement with his deputies which provides for the payment of a monthly automobile allowance in addition to other benefits in exchange for the use of the deputies' private vehicles for patrol and investigative purposes, no violation of the Code of Ethics exists so long as the terms of the agreement are authorized by s. 112.061(7)(f) and the allowance specified has been based upon one or more signed statements of the deputies, as required by that section. As the Ethics Commission's statutory jurisdiction to render advisory opinions extends only to the Code of Ethics and not to the travel laws, the Attorney General should be contacted as to whether the agreement conforms to the requirements of s. 112.061(7)(f).

QUESTION:

Does a prohibited conflict of interest exist when a sheriff enters into an agreement with a deputy sheriff which provides for the payment of a monthly car allowance in addition to other benefits in exchange for the use of the deputy's privately owned vehicle for patrol and investigative purposes?

In your letter of inquiry you advise that you have entered into agreements with four of your deputy sheriffs for the use of their privately owned vehicles for official business. In return, each deputy receives $150 per month as a car allowance as well as a tire allowance of $100 per year. Fan belts, batteries, and alternators are maintained by the sheriff's department, which also furnishes gasoline and liability insurance for the vehicles while the deputies are on duty. In addition, the department will pay for one change or installation of radio equipment in the vehicle during any 24-month period. The preceding is to be paid up to, but not to exceed, 14 cents per mile.

The Code of Ethics for Public Officers and Employees 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. The foregoing shall not apply to district offices maintained by legislators when such offices are located in the legislator's place of business. This subsection shall not affect or be construed to prohibit contracts entered into prior to:

(a) October 1, 1975.

(b) Qualification for elective office.

(d) Beginning public employment.

[Section 112.313(3), F. S. 1977; emphasis supplied.]

This provision prohibits a public officer or employee from leasing any goods to his agency. Therefore, in CEO 76-43A we advised that a lease program whereby deputy sheriffs would lease their privately owned automobiles to the sheriff's department would violate s. 112.313(3).

However, we also advised that Florida law expressly provides for reimbursement of expenses incurred for the use of one's personal vehicle for public business, either by a fixed mileage allowance not to exceed 14 cents per mile [see s. 112.061(7)(d)1., F. S. (1978 Supp.)], or by a fixed monthly allowance based on an average typical month's travel on official business. See s. 112.061(7)(f), F. S. (1978 Supp.), which provides:

The agency head may grant monthly allowances in fixed amounts for use of privately owned automobiles on official business in lieu of the mileage rate provided in paragraph (d) of this subsection. Allowances granted pursuant to this paragraph shall be reasonable, taking into account the customary use of the automobile, the roads customarily traveled, and whether any of the expenses incident to the operation, maintenance, and ownership of the automobile are paid from funds of the agency or other public funds. Such allowance may be changed at any time, and shall be made on the basis of a signed statement of the traveler, filed before the allowance is granted or changed, and at least annually thereafter. The statement shall show the places and distances for an average typical month's travel on official business, and the amount that would be allowed under the approved rate per mile for the travel shown in the statement, if payment had been made pursuant to paragraph (d) of this subsection.

Accordingly, so long as the terms of the agreement are authorized by s. 112.061(7)(f), F. S., and the allowance specified has been based upon one or more signed statements of the deputies who are using their private automobiles, as required by that section, the Code of Ethics does not prohibit such an agreement as you have outlined. As our statutory jurisdiction to render advisory opinions extends only to the Code of Ethics and not to the travel laws, we suggest that you contact the Attorney General if you desire an opinion as to whether your existing agreement complies with s. 112.061(7)(f), F. S.