CEO 77-96 -- July 21, 1977
CONFLICT OF INTEREST
GIFTS WHICH MAY BE RECEIVED BY PUBLIC EMPLOYEES
To: (Name withheld at the person's request.)
Prepared by: Phil Claypool
SUMMARY:
Section 112.313(2)(a), F. S. 1975, prohibiting a public officer or employee from accepting any gift which would cause a reasonably prudent person to be influenced in the discharge of his public duty, was declared to be unconstitutionally vague by the Florida Supreme Court. Anderson v. D'Alemberte, S.Ct. Case No. 49,851. Paragraph (b) prohibits a public employee from accepting a gift that is based upon any understanding that the official action or judgment of the employee would be influenced thereby. In the absence of any such understanding, the provision would not be violated were employees of a municipal building department to accept a box of candy from a general contractor or were an official of the department to accept a magnum of whiskey from an aluminum contractor.
However, s. 112.313(4) further prohibits a public employee from accepting anything of value which the employee knows, or with the exercise of reasonable care should know, was given to influence his official action. This provision similarly requires knowledge on the part of the public employee, or circumstances which strongly suggest, that a particular gift is being given with the intent that the employee's future official action will be influenced. In the absence of any testimony to this effect, we can only offer the language of the provision for guidance. Also, please note that a person required to file financial disclosure by s. 112.3145, F. S., must disclose gifts of $100 in value received during the disclosure period.
QUESTION:
Would a prohibited conflict of interest exist were employees of a municipal building department to accept as a gift a box of candy from a general contractor or were an official of that department to accept a magnum of whiskey from an aluminum contractor?
In your letter of inquiry you have stated that you are the Building Official of the Building Department of the City of Boynton Beach. Before last Christmas, a general contractor brought a box of candy intended for all personnel in the department. In addition, an aluminum contractor brought a magnum of whiskey as a gift for an official of the department. You have estimated the cost of the candy to be $8 and the whiskey to be $25. Due to the position of the department in dealing with contractors, architects, and engineers, you established the departmental policy of refusing to accept all gifts in order to avoid the possibility of accusations of conflict of interest. These gifts were refused, and now you seek advice as to whether a prohibited conflict of interest would have been created were the gifts to have been accepted.
The Code of Ethics for Public Officers and Employees states in relevant part:
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:
(a) That would cause a reasonably prudent person to be influenced in the discharge of official duties.
(b) 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), F. S. 1975.]
Paragraph (a) of this provision has been held unconstitutional by the Florida Supreme Court. Anderson v. D'Alemberte, S.Ct. Case No. 49,851. Paragraph (b) prohibits a public employee from accepting a gift that is based upon any understanding that the official action or judgment of the public employee would be influenced thereby. We are of the opinion that this provision will be violated only when the public employee involved has reached an agreement or understanding with the donor that his official actions will be influenced by the gift.
Thus, in the absence of any evidence that such an agreement or understanding existed, there would be no violation of this provision. Accordingly, unless such an understanding existed when the gifts were offered last Christmas, there would have been no violation of this provision had they been accepted.
The Code of Ethics also 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), F. S. 1975.]
This provision prohibits a public employee from accepting anything of value when the employee knows, or, with the exercise of reasonable care, should know, that it was given to influence his official action. This provision similarly requires knowledge on the part of the public employee, or circumstances which strongly suggest, that a particular gift is being given with the intent that the employee's future official action will be influenced. Without testimony by the employees to whom the gifts were offered and without knowing what actions were expected to be taken by the employees with regard to the contractors who offered the gifts, we must decline to advise you whether a violation of this provision would have occurred had the gifts been accepted. Accordingly, for guidance we can only offer you the language of the provision.
In addition, regarding the subject of gifts, please note that a person required to file financial disclosure by s. 112.3145, F. S., must disclose
all persons, business entities, or other organizations, and the address and a description of the principal business activity of each, from whom he received a gift or gifts from one source, the total of which exceeds $100 in value during the disclosure period. [Section 112.3145, F. S. 1975.]
Elected public officers must disclose gifts exceeding $25 in value pursuant to s. 111.011, F. S. (1976 Supp.).