CEO 85-82 -- November 26, 1985

CONFLICT OF INTEREST

COUNTY COMMISSIONER AND COUNTY ATTORNEY ACCEPTING HUNTING PRIVILEGES FROM LOCAL DEVELOPER

To: Mr. L. Michael Milbrath, County Attorney, Marion County

SUMMARY:

No prohibited conflict of interest exists where a county attorney and a county commissioner have requested and have been given hunting privileges on land owned by a developer who is in the process of developing a multi- family subdivision in the county, for which a development of regional impact order has been issued by the county. Under the circumstances presented, neither Section 112.313(2) nor Section 112.313(4), Florida Statutes, would prohibit the solicitation or acceptance of the hunting privileges. Hunting privileges valued in excess of $25.00 should be disclosed as a gift under Section 111.011, Florida Statutes.

QUESTION:

Does a prohibited conflict of interest exist where you, a county attorney, and a county commissioner have requested and have been given hunting privileges on land owned by a developer who is in the process of developing a multi-family subdivision in the county, for which a development of regional impact order has been issued by the county?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry and in a telephone conversation with our staff, you have advised that you have been employed as County Attorney for Marion County and that Mr. Roy Abshier serves as a member of the County Commission. You also advise that both of you have been invited to hunt on property owned by a local developer in the County. Several local businessmen, who are not involved in local government, also have been invited to hunt on the same property without being charged a fee.

You further advise that both you and the County Commissioner had hunting privileges on the property for many years before the developer obtained the property. Three years ago, the County Commissioner asked the developer if he could hunt on the property and was given the privilege; when you learned of this from the Commissioner, you also asked the developer and were given a pass to hunt on the property. Since then, both of you have asked for and been given hunting privileges each year, although you have hunted there only once in the last two years. You estimate the value of the hunting privileges to be no more than $100.00 per year.

You advise that the developer owns a large tract of land several miles away which currently is being developed as a multi-family subdivision. The County entered into a development agreement with the prior owner of the property in the 1970's and issued a development of regional impact order for the current developer two years ago. As development proceeds, the County will enter into a series of standard maintenance agreements with the developer for the maintenance of roads in the development. In addition, the County is required to make an annual review of the development; the County Zoning Director is in charge of this review process. Finally, you advise that the developer has donated, and the County has agreed to accept, right of way for the extension of a road through the property, with the County and the developer splitting the cost of constructing the road. That agreement is in the process of being drafted.

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

SOLICITATION OR ACCEPTANCE OF GIFTS. -- No public officer, 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, 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 (1983).]

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 (1983).]

The first of these provisions prohibits a public officer or employee from soliciting or accepting anything of value based upon any understanding that his official action would be influenced. However, there is no indication from the facts presented that hunting privileges were solicited or accepted based upon the understanding that the official action of the County Commissioner or you would be influenced.

In CEO 80-27 we advised that 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. Where the donor is in a position to be benefited by the officer's or employee's action, we advised, the officer or employee should weigh the value of what is received against the ostensible purpose for its being given, with the larger its value, the more difficult to justify its being given for any reason except to influence.

Under the circumstances presented, we do not find that the hunting privileges were given to influence a vote or other official action in which either you or the County Commissioner were expected to participate. In particular, we base our conclusion on the value of the hunting privileges and the circumstances concerning the request and extension of hunting privileges.

Accordingly, we find that no prohibited conflict of interest exists where you and the County Commissioner have requested and been given hunting privileges by the developer. Please note that under Section 111.011, Florida Statutes, elected county officials are to disclose any gift, the value of which is in excess of $25.00. In AGO 075-151, the Attorney General advised that where hunting privileges are provided gratuitously to an elected public officer, such privileges should be reported under Section 111.011 when their value exceeds $25.