CEO 85-50 -- July 11, 1985

CONFLICT OF INTEREST; GIFT DISCLOSURE

HIGH SPEED RAIL TRANSPORTATION COMMISSION MEMBERS TAKING EDUCATIONAL TOURS OF HIGH-SPEED RAIL SYSTEMS

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

SUMMARY:

No prohibited conflict of interest would be created were members and staff of the Florida High-Speed Rail Transportation Commission to take educational tours of existing high-speed rail systems and facilities at their own expense, where some expenses will be furnished by potential applicants for a Florida high-speed rail system franchise. Under the circumstances, commissioners may accept demonstration rides, ground transportation, and meals from potential applicants. Generally speaking, mementos or symbols of hospitality also may be accepted. Advice is given regarding gift disclosure.

QUESTION:

Would a prohibited conflict of interest be created were members of the Florida High Speed Rail Transportation Commission and staff to take educational tours of existing high-speed rail systems and facilities, where some expenses will be furnished by potential applicants for a Florida high speed rail system franchise?

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

In your letter of inquiry you advise that the Florida High Speed Rail Transportation Commission was created by Chapter 84-207, Laws of Florida, within the Department of Transportation to administer the Florida High Speed Rail Transportation Commission Act. The Act establishes a centralized and coordinated permitting and planning process for the location, construction, operation, and maintenance of a high speed rail system within the State. The Commission consists of seven members appointed by the Governor, subject to confirmation by the Senate.

You also advise that the Commission is in the process of implementing its statutes and is working toward the eventual preparation of requests for proposals for the provision of a high- speed rail line. In adopting guidelines and standards for preparing requests for proposals, the Commission is mandated by law to consider and be guided by thirteen special factors. One of the most important factors to be considered is the proposed technology, as the high- speed train will have to travel in excess of 120 m.p.h. At this time the only high-speed rail systems in operation are in countries other than the United States.

In an effort to gain an understanding of the technology and in furtherance of its duties prescribed by law, the Commission has determined that tours of existing high-speed rail systems and facilities are a necessary part of a fact-finding, educational process. Private business groups which have ownership interests in existing high-speed rail transportation systems have invited the Commission members to ride on their trains and make first-hand observations. In order to do this, the Commission will take trips to Europe, Canada, and Japan during the next several months to gather information, view demonstrations, and ride high-speed rail trains.

The Commission members have decided to take individual responsibility for their air fare and hotel expenses. However, it is anticipated that, by the nature of these trips abroad and the customs of the countries to be visited, some expenses and things of value will be provided by the potential applicants for a Florida franchise. It is anticipated that ground transportation by private vehicle may be furnished to expedite tours. It also is anticipated that hosts, which will include both foreign government and private industry members, may provide luncheons or other meals as a convenience and courtesy to the visiting Commissioners. There obviously will be complimentary rides on trains for demonstration purposes. In addition, it is possible that representatives of the host country and private industry may present Commissioners with mementos or symbols of their hospitality.

The Code of Ethics for Public Officers and Employees does not absolutely prohibit a public officer from accepting a gift or other thing of value from a business entity which may be doing business with his agency. Rather, whether an official may accept such a gift depends on the intent of the donor and on the circumstances under which it is given.

Section 112.313(2), Florida Statutes, prohibits a public officer from soliciting or accepting anything of value based upon any understanding that his official actions would be influenced. However, this provision clearly does not apply to the ground transportation, meals, demonstration rides, or mementos which the Commission members anticipate may be provided.

The only other provision of the Code of Ethics governing the acceptance of gifts or other things of value is Section 112.313(4), Florida Statutes. This provision prohibits a public officer from accepting anything of value when the officer knows, or with the exercise of reasonable care should know, that it was given to influence some official action in which he was expected to participate.

In CEO 84-72 we advised that this provision would not preclude members of the Pesticide Review Council and personnel of the Department of Agriculture and Consumer Services from taking an educational tour of two pesticide facilities located out-of-state, where ground transportation, meals, and some travel expenses would be provided by an industry association and by the pesticide manufacturers. Because of the clearly educational nature of that trip, directly related to the official business of those persons participating, we concluded that Section 112.313(4) would not be violated. Similarly, here, it is clear that demonstration rides on high-speed trains and ground transportation would not be provided for the private use, consumption, or enjoyment of Commission members, but would be of value to them only in their official capacity. In other words, demonstration rides necessary to evaluate a high-speed rail system clearly are different from a lifetime pass to ride the railway system.

CEO 84-72 also indicates that a public official is not prohibited from accepting hospitality within reasonable limits, such as meals or ground transportation, in connection with an educational tour. This would be especially true where, as here, the official will be paying for his air transportation and hotel expenses, the majority of the expenses of the trip. Under the circumstances presented, we generally would include mementos of the trip as part of the hospitality provided by the governments and firms sponsoring the trips. Hospitality has its limits, however. We have advised that where something is given to an official for his private use, consumption, or enjoyment, the official should weigh the value of the thing received against the ostensible purpose for its being given, with the larger its value, the more difficult the justification except in terms of being given to influence. See CEO 80-27. Obviously, at this time no one knows the exact nature of what might be given, so we are unable to provide any more specific advice than this.

The Code of Ethics also requires each appointed official to disclose persons or organizations from whom he receives gifts exceeding $100 in total value during a calendar year. Section 112.3145(3)(d), Florida Statutes. The term "gift" is defined in part to mean "real property or tangible or intangible personal property, of material value to the recipient . . . ." Section 112.312(9)(a), Florida Statutes.

Under this definition, demonstration trips on a high-speed rail system would not be included, as they would not be of material value to the recipient in the sense of being for private use, consumption, or enjoyment, as explained above. Ground transportation by private vehicle also would not be included, as such transportation is not tangible or intangible property. See CEO 78-41, regarding transportation in a private airplane. Meals and mementos, however, would be included. Therefore, if a reasonable estimate of the value of meals or mementos received from any one business group exceeds $100, that group should be listed on the financial disclosure form (Commission on Ethics Form 1) to be filed by July 1, 1986 for the year 1985.

Accordingly, under the circumstances presented and under the limitations noted, the Code of Ethics would not prohibit members of staff and the Commission from taking educational tours of existing high-speed rail systems and facilities, even though some expenses will be furnished by potential applicants for a Florida high-speed rail system franchise.