CEO 80-60 -- September 19, 1980

CONFLICT OF INTEREST

CITY OFFICIAL ACCEPTING TRIP PAID BY A SANITATION COMPANY TO STUDY RECYCLING PLANTS

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

Prepared by: Phil Claypool

SUMMARY:

Section 112.313(2)(b), F. S., prohibits a public officer from accepting anything of value based upon any understanding with the donor that the officer's official action will be influenced by the gift. In the absence of any such agreement or understanding, there would be no violation of this provision in a municipal official's acceptance of a trip abroad paid for by a sanitation company doing business with the city. See CEO 77-96 for a fuller examination of this provision of law.

Section 112.313(4) further prohibits a public officer from accepting anything of value when he 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 officer, or circumstances which strongly suggest, that a particular thing is given with the intent to influence official action. See CEO's 78-49, 78-90, and 79-22. The commission has observed that this section of the law 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. The public officer or employee should weigh the value of the thing received against the ostensible purpose for its being given; the larger its value, the more difficult it should be to justify its being given for any reason other than to influence, assuming there is some official action anticipated which would affect the donor or some other specific person or entity.

When a municipal official has been offered a trip abroad to observe recycling and waste processing plants, to be paid for by a sanitation company which has an exclusive 10-year franchise awarded by the city, it cannot be concluded, despite the value of such trip, that s. 112.313(4) would be violated by the official's acceptance of the trip because: the manner of disposition of wastes is not a responsibility of the sanitation company under the franchise agreement, so that, no matter how the city eventually decides to dispose of solid wastes, the company does not stand to gain or lose; since the 10-year franchise agreement recently was awarded by the city, no official action on the agreement is anticipated for quite some time; and in all probability the company would not be involved in the construction or establishment of waste disposal facilities, should the city ultimately decide to build or establish such facilities. Therefore, based on the facts presented, it does not appear that the trip is intended to influence official action in favor of the sanitation company or any other specific person or entity.

QUESTION:

Would a prohibited conflict of interest be created were a city official to accept a trip to Germany to view recycling and waste processing plants when the trip is paid for by a sanitation company which has an exclusive franchise with the city.

Your question is answered in the negative, under the circumstances presented in this opinion.

In your letter of inquiry you advise that ____ is an official of the City of Miramar, which has granted an exclusive franchise to a particular sanitation company for commercial and residential sanitation collection. In addition, you advise that an officer of that sanitation company has proposed to take the official and a department head on a trip to Germany at the company's expense in order to view certain recycling, waste processing, and resource recovery plants. This trip would be of some obvious benefit to the city, you advise, since the city is considering alternative methods of resource recovery.

The Code of Ethics for Public Officers and Employees provides in 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.]

Paragraph (a) of this provision has been declared to be unconstitutional, so that we may only consider paragraph (b). D'Alemberte v. Anderson, 349 So.2d 164 (Fla. 1977). With respect to paragraph (b), we have advised that it will be violated only when the public officer involved has reached an agreement or understanding with the donor that his official action will be influenced by the gift. See CEO 77-96. Thus, in the absence of evidence that such an agreement or understanding exists, there would be no violation of this provision. Accordingly, unless such an understanding exists between the subject official and the sanitation company, and we note that you have not provided us with any information which would indicate such circumstances, there would be no violation of s. 112.313(2)(b) in accepting the proposed trip.

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.]

This provision prohibits a public officer from accepting anything of value when he knows, or with the exercise of reasonable care, should know, that it was given to influence his official action. Therefore, this provision similarly requires knowledge on the part of a public officer, or circumstances which strongly suggest, that a particular thing is being given with the intent that the officer's future official action will be influenced.

In previous opinions we have found that this provision would not be violated when the existence and nature of a prior relationship between the public officer and the donor would indicate that there was no intent to influence official action. See CEO's 78-90 and 79-22. In addition, we have found that this provision would not be violated when it was improbable that the officer would be called upon to participate in any official action involving the donor. See CEO 78-49. However, we also have advised that s. 112.313(4) 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. Assuming the donor is in a position to be benefited by the officer's or employee's action, the officer or employee should weigh the value of the thing received against the ostensible purpose for its being given. The larger its value, the more difficult it should be to justify its being given for any reason except to influence, assuming that there is some official action on the part of the recipient anticipated in the future which would affect the donor or some other specific person or entity. See CEO 80-27.

In a telephone conversation with our staff, you advised that the area of the state including the City of Miramar is faced with a critical problem in how to dispose of solid waste materials, because of shrinking numbers of available locations to dump the wastes. Thus, you believe that within the next year the city will have to make a decision on how to dispose of solid wastes; already, you advised, the city is considering the possibility of an interlocal agreement to establish a waste facility in the city for use by the city and the other parties to the agreement. The purpose of the trip, then, would be to examine alternative methods of disposing of solid wastes used in Germany, methods which apparently have not been developed in this country.

Regarding the sanitation company, you advised that it recently was granted a 10-year exclusive franchise for the collection and delivery of solid waste materials. The manner of disposition of wastes is not a responsibility of the company under the franchise agreement, so that no matter how the city eventually decides to dispose of solid wastes, the company does not stand to gain or to lose. Nor do you believe that the company would be involved in the possible construction or establishment of a waste processing plant, for example, should the city ultimately decide to dispose of wastes in such a manner.

Under these circumstances, even though the value of a trip to Germany would be potentially great, we cannot conclude that the trip is being given to influence some official action in which the subject official is expected to participate in favor of the sanitation company or any other person or entity. The trip will relate to methods of disposing of solid wastes, a matter which you anticipate will be decided by official action of the city, but also a matter which you advise would not result in any benefit to the company under the franchise agreement. In addition, you have advised that, since the 10-year franchise agreement recently was awarded by the city, no official action on the agreement is anticipated for quite some time. Finally, you have advised that you do not believe that the company would be involved in the construction or establishment of waste disposal facilities, should the city ultimately decide to build or establish such facilities. Assuming that this is true, as we are required to do when issuing advisory opinions, this circumstance also indicates that the sanitation company would not benefit in the future through the city's decision on a manner of disposing of solid wastes. Therefore, while the trip may influence the judgment of the official by assisting him to evaluate available methods of waste disposal, it does not appear that the trip is intended to influence official action in favor of the sanitation company or any other specific person or entity.

Accordingly, under the circumstances you have presented, we cannot conclude that the Code of Ethics for Public Officers and Employees would prohibit the subject official from accepting the proposed trip. However, we observe that although the Code of Ethics does not address the appearance of impropriety of a public official's conduct, it does provide as its legislative intent that it is essential to the proper conduct and operation of government that public officials be independent and impartial and that one of the purposes behind enactment of the Code of Ethics was to strengthen the faith and confidence of the people of the state in their government. Section 112.311(1) and (5), F. S. Therefore, we urge the subject official to keep in mind the spirit of the Code of Ethics, as well as its actual provisions, when deciding whether to accept the proposed trip.