CEO 92-32 -- July 17, 1992

CONFLICT OF INTEREST

COUNTY COMMISSION VOTING TO EXPEND PUBLIC FUNDS TO IMPROVE A PRIVATE DRIVEWAY ON PRIVATE PROPERTY

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

SUMMARY:

No misuse of position in violation of Section 112.313(6), Florida Statutes, would occur if a county commissioner were to vote to expend county funds to improve a private driveway on private property in order to facilitate the pick up and transportation of a handicapped child to a public facility for educational and recreational purposes by a bus which is owned and operated by a nonprofit corporation. Because there is an arguable justification for the expenditure of public funds for this purpose and further because the expenditure is not for a purpose which the county commissioner knows is not permitted by law, a vote by him in favor of the expenditure of funds for this purpose would not be made with wrongful intent as required for a violation of Section 112.313(6), Florida Statutes, to occur.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit a County Commissioner from voting to expend public funds to improve a private driveway located on private property in order to facilitate the access of a bus owned by a nonprofit company to pick up and transport a handicapped child each day to a public facility for educational and recreational purposes?

Your question is answered in the negative.

Through your letter of inquiry and staff's conversation with your office staff, you advise that Columbia County Commissioner . . . . is requesting our opinion on whether the Board of County Commissioners may expend public funds to improve a private driveway which is located on private property in order to facilitate the access of a bus which is owned and operated by the Suwannee Valley Transit Authority. You advise that the bus must travel onto the private property in order to pick up and transport a handicapped child each day to a public facility for educational and recreational purposes.

You advise that Columbia County, together with Suwannee and Hamilton Counties, contributes funding to the Suwannee Valley Transit Authority, a nonprofit corporation which is partially funded by the three counties to serve their transportation needs. The Authority is not a State agency or a political subdivision of the State; nor is it authorized to levy ad valorem taxes, you advise. You advise that additional funds necessary for the Transit Authority's operation are generated by the Transit Authority itself.

You advise that the handicapped child resides at home with her parents and is required to be transported each day to a public facility for educational and recreational purposes. You also advise that the Transit Authority has indicated to the parents of the handicapped child that it will be necessary for their private driveway to be improved with, among other things, limerock, in order to provide a reasonable ingress and egress for the Transit Authority's bus and to enable it to turn around on their property.

Although the County School Board may be obligated under both State and Federal law to provide for the transportation needs of the child in order to assist her in benefiting from special education, you advise, the County often helps the School Board meet its obligation by maintaining the County's roads. The Board of County Commissioners would like to assist in this instance by providing limerock on the private driveway to enable the child to be picked-up and transported by the Transit Authority's bus from the child's home; however, concern has been expressed that this may not be a proper expenditure of public funds, and, therefore, would constitute a legal or ethical violation.

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

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. [Section 112.313(6), Florida Statutes.]

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).]

This provision prohibits the County Commissioner from using or attempting to use his official position or any resource which may be within his trust to secure a special privilege or benefit, where his actions are taken with wrongful intent for the purpose of obtaining a benefit for himself or another and are inconsistent with the proper performance of his public duties. In other words, we find that this section could be violated were the County Commissioner knowingly to vote to spend County funds for a purpose not permitted by law and which would personally benefit himself or another. See CEO 77-108.

We initially note that the Federal Education for all Handicapped Children Act (EAHCA), 20 U.S.C. s.1400, et. seq., and the regulations promulgated thereunder, 34 C.F.R. s.300.1, et. seq., provide federal money to assist states and local school districts in providing full educational opportunities to all handicapped children. For a state to receive federal assistance, the state must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education." 20 U.S.C. s.1412(1). The term "free appropriate public education" is defined at 20 U.S.C. S.1401(18) to include special education and related services. The definition of "related services" at 20 U.S.C. s.1401(17) encompasses transportation services. Similar requirements are imposed on the State's School Boards by both State law and rules.

Section 234.02, Florida Statutes, authorizes transportation to be provided to handicapped children other than by the school district when, among other things, it is provided by public transportation or through written or oral contracts or agreements. Therefore, inasmuch as there appears to be an arguable justification for the expenditure of the County's funds for the purpose of enabling the handicapped child to be transported to a public facility for educational and recreational purposes--clearly a governmental function--we do not find that the vote of a Commissioner to expend funds to improve the driveway, even if it incidentally benefits the family of the handicapped child, would be made with wrongful intent. Therefore, no violation of Section 112.313(6), Florida Statutes, would occur.

In a number of opinions, the Attorney General has repeatedly stated that public funds may only be used for public purposes. These purposes "generally are for the support of government or recognized objects of government, or for the direct promotion of the welfare of the body politic." See AGO 071-28 and AGO 075-299. In a more recent opinion, the Attorney General was asked whether the City of West Palm Beach may lawfully expend municipal funds to construct a seawall on private property. The Attorney General responded in relevant part:

Section 10, Art. VII, State Const., prohibits the state or counties, municipalities, or any agency thereof, from using, giving, or lending its taxing power or credit to aid any private interest or individual. The purpose of the constitutional provision is to protect public funds and resources from being exploited in assisting or promoting private ventures when the public would at most only be incidentally benefited. [Bannon v. Port of Palm Beach District, 246 So.2d 737 (Fla. 1971).] However, if the paramount purpose of a public expenditure is a public purpose, the fact that the expenditure may also incidentally benefit private individuals does not violate s. 10, Art. II, State Const.

The determination of what constitutes a valid public purpose from the expenditure of public funds is a factual determination for the legislative and governing body involved, in this case the City Commission of the City of West Palm Beach. [State v. Housing Finance Authority of Polk County, 376 So.2d 1158, 1160 (Fla. 1979).] Such a determination must be made by the City Commission and cannot be delegated to this office. [AGO's 83-6 and 77-27.]

For these reasons, we do not decide here whether the County's proposed expenditure would serve a paramount public purpose. Any further guidance on determining the appropriateness of the expenditure should be sought through the Attorney General's office.

Accordingly, we find that because an arguable justification exists for the expenditure of County funds to improve a driveway on private property to facilitate access of a bus to pick up and transport a handicapped child each day to a public facility for educational and recreational purposes, and because of the lack of wrongful intent on the part of the County Commissioner, a vote by him in favor of the expenditure of the funds for this purpose would not be in violation of Section 112.313(6), Florida Statutes.