CEO 83-15 -- March 10, 1983

CONFLICT OF INTEREST

STATE REPRESENTATIVE SOLICITING OR ACCEPTING FINANCIAL GIFTS TO PAY FOR INFORMATIONAL MAILINGS TO CONSTITUENTS

To: The Honorable Virginia B. Bass, State Representative, 2nd District

SUMMARY:

So long as the solicitation or acceptance of a financial gift to pay for informational mailings is not based upon any understanding that official action would be influenced, and so long as the official does not know, and with the exercise of reasonable care should not know, that it is being given to influence some official action in which the public officer is expected to participate, neither Sections 112.313(2) nor 112.313(4), Florida Statutes, would prohibit a State Representative from soliciting or accepting that gift. CEO's 78-49, 80-27, and 80-60 are referenced. Disclosure of such gifts should be made pursuant to Section 111.011, Florida Statutes, if exceeding the $25 threshold of that statute.

QUESTION:

Would a prohibited conflict of interest be created were you, a State Representative, to solicit or accept financial gifts to you personally or to your office account in order to pay for printing and mailing several informational materials to constituents of your District?

In your letter of inquiry you advise that in an effort to bring State government closer to the people of your District, you have planned several informational mailings now and in the future. You advise that your monthly expense account as a State Representative is not large enough to pay for the stamps and printing for these mailings. Therefore, you question whether you may solicit or accept financial gifts to you personally or to your office account to pay for printing and mailing these informational mailings, so long as you disclose these gifts on your annual financial disclosure report.

There is no provision of the Code of Ethics for Public Officers and Employees which prohibits altogether a public officer from soliciting or accepting any financial gifts. However, this is not to say that there are no restrictions on a public officer's solicitation or acceptance of financial gifts, as the Code of Ethics does provide:

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), Florida Statutes (Supp. 1982).]

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), Florida Statutes (1981).]

Therefore, under Section 112.313(2), Florida Statutes, you may not solicit or accept a financial gift which is based upon any understanding that your official action or judgment would be influenced. In addition, under Section 112.313(4), Florida Statutes, you may not accept a financial gift if you know, or with the exercise of reasonable care should know, that it was given to influence a vote or other action in which you were expected to participate in your official capacity. In previous opinions we have found that this prohibition would not be violated where it was improbable that the public officer would be called upon to participate in any official action involving the donor. See CEO 78-49 and CEO 80-60. However, we also have advised that this provision places the burden upon a public officer to exercise reasonable care in determining whether a particular payment or thing of value has been given with the intent to influence his or her official action. Assuming the donor is in a position to be benefited by the officer's action, the officer should weigh the value of the thing received against the ostensible purpose for its having been given. The larger its value, the more difficult it should be to justify its having been given for any reason except to influence, assuming that there is some official action on the part of the recipient anticipated in the future which would affect the donor or some other specific person or entity related to the donor. See CEO 80-27.

Regarding the disclosure of gifts received by elected public officers, Section 111.011, Florida Statutes, requires the disclosure of gifts of $25 and expenditures from, or the disposition made of, such gifts. This disclosure should be made on Commission on Ethics Form 7, which we are promulgating as part of the annual financial disclosure package to be filed by elected constitutional officers such as you.

As you have not provided us with information concerning any particular financial gift (and we note that apparently you are not in a position to provide that information at this time), we are unable to offer our opinion on any particular situation. However, so long as your solicitation or acceptance of a financial gift to pay for informational mailings is not based upon any understanding that your official action would be influenced, and so long as you do not know, and with the exercise of reasonable care should not know, that it is being given to influence some official action in which you are expected to participate, we find that the Code of Ethics would not prohibit you from soliciting or accepting that gift.