CEO 92-26 -- June 5, 1992

CONFLICT OF INTEREST; GIFTS

SCHOOL TEACHERS RECEIVING AUTOMOTIVE REPAIR DISCOUNTS

AT VOCATIONAL TECHNICAL CENTER

To: Mr. James H. Siesky, Attorney for Collier County School District (Naples)

SUMMARY:

No prohibited conflict of interest would be created were a school district's teachers to have their personal vehicles repaired by an auto mechanics program operated at the district's vocational technical center. Nor does it appear that a prohibited conflict of interest would be created were the teachers to receive discounts on their repair costs as compared to the price paid by the general public. Further, because the discount would be available to all of the district's teachers, the discounted service would not constitute a "gift." CEO's 89-31 and 88-42 are referenced.

QUESTION 1:

Would a prohibited conflict of interest be created were teachers employed by a school district to have their personal automobiles repaired at a facility operated by the school district?

Question 1 is answered in the negative.

In your letter of inquiry, you advise that the Collier County School District operates a Vocational Technical Center which provides instruction to students in many areas, including but not limited to nursing, small engine repairs, computer programming, horticulture, and auto mechanics. It is important for the students of the auto mechanics program to have vehicles to repair, you advise, so this program repairs vehicles for the general public as well as for teachers. To this end, you question whether any provision of the Code of Ethics for Public Officers and Employees is violated where teachers have their cars repaired at a facility operated by their employer.

The first provision of the Code of Ethics which is implicated by your inquiry is Section 112.313(2), Florida Statutes, which provides:

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.

This provision prohibits public officers or employees from soliciting or accepting anything of value, including a service, based upon an understanding that the official action of the public officer or employee would be influenced as a result.

If teachers were soliciting auto repairs from students at the Center based upon an understanding that, for example, they would give the students favorable grades, then that could constitute a violation of Section 112.313(2), Florida Statutes. However, there is nothing to suggest that this is the case. Thus, under the circumstances outlined in your correspondence, Section 112.313(2), Florida Statutes, is inapplicable.

Our focus then shifts to Section 112.313(3), Florida Statutes, which states:

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 of 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.

(c) Appointment to public office.

(d) Beginning public employment.

This provision is inapplicable to the situation, notwithstanding its title, because there is no indication that the teachers are selling any services to the Vocational Technical Center. Instead, they are obtaining a service from the Center, which is not prohibited by Section 112.313(3), Florida Statutes.

Section 112.313(4), Florida Statutes, provides:

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, is inapplicable to the situation as there is no indication that the teachers are given automotive repairs by the Vocational Technical Center to influence their official actions.

Section 112.313(6), Florida Statutes, provides:

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.

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means 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(9), Florida Statutes (1991).]

Although there is nothing in your correspondence to implicate this provision, we would suggest that it could be violated where instructors in the auto mechanics program required students to make repairs to the instructors' vehicles without regard for any policy that required the instructors to pay for such services. Other examples could be developed which would also indicate misuse of position. However, as there is nothing to suggest that there has been any misuse, we reference this provision only to suggest that you be mindful of its implication.

Finally, Section 112.313(7)(a), Florida Statutes, provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.

This provision prohibits public officers and employees from having an employment or contractual relationship with a business entity that is doing business with, or is subject to the regulation of, their public agency. It also prohibits public officers and employees from having an employment or contractual relationship which creates a continuing or frequently recurring conflict with their private interests and the performance of their public duties, or impedes the full and faithful discharge of their public duties.

The first portion of Section 112.313(7)(a), Florida Statutes, is inapplicable, as the teachers have no employment or contractual relationship with a "business entity" as that term is defined in Section 112.312(5), Florida Statutes. Instead, they would have an employment or contractual relationship with the School District when they have their cars repaired at the Center. Under the second portion of Section 112.313(7)(a), Florida Statutes, there appears to be no continuing or frequently recurring conflict between the teachers' private interests in having their automobiles repaired and their public responsibilities as teachers for the School District. Nor is there any indication that an impediment to their duties as teachers would be created by having their vehicles repaired at the Center.

Accordingly, under the information you have provided, there would not appear to be any violation of the Code of Ethics for Public Officers and Employees where a School District's teachers have their cars repaired at a facility operated by the School District.

QUESTION 2:

Would there be any violation of the Code of Ethics if teachers received a discount on repair costs as compared to that paid by the general public?

Under the circumstances presented, Question 2 is answered in the negative.

You question whether any provision of the Code of Ethics would be contravened were teachers to receive a discount on their repair costs from the Vocational Technical Center.

In previous opinions issued by this Commission, we have taken the view that Sections 112.313(2) and 112.313(4), Florida Statutes, would not be violated where there was no understanding or knowledge that the rate was given to influence any official action on the part of the public official or employee. See CEO 89-31, where port officials and employees received discounted cruises based upon published discounted rates available to any member of the travel industry. See also CEO 88-42, where county paramedics and EMT's received discounts at local restaurants while they were on duty. As in the referenced opinions, there is no indication that the teachers are being offered a discount to influence their official actions. Thus, there would appear to be no violation of Sections 112.313(2) or 112.313(4), Florida Statutes, if teachers received discounted repairs from the auto mechanics program at the District's Vocational Technical Center.

However, since the issuance of these earlier opinions, the Legislature has enacted extensive revisions to the State's gift laws, which affect the receipt and disclosure of gifts given to certain public officers and employees. In this regard, Section 112.312(12)(a), Florida Statutes, provides:

'Gift,' for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for his benefit or by any other means, for which equal or greater consideration is not given, including:

5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.

Based upon this definition of "gift," we are of the view that the discounted repair services provided to the School District's teachers by the District's Vocational Technical Center would not constitute gifts to those teachers, as this discounted service would presumably be available to all of the teachers in the School District.

Accordingly, we are of the view that there is no violation of the Code of Ethics for Public Officers and Employees where all teachers are entitled to receive the discount on vehicle repair services from the School District's Vocational Technical Center.