CEO 89-11 -- April 13, 1989
CONFLICT OF INTEREST
To: Mr. Charles H. Smith, Executive Director, Florida High Speed Rail Transportation Commission (Tallahassee)
A prohibited conflict of interest would not be created were members and staff of the Florida High Speed Rail Transportation Commission to accept transportation to and hotel accommodations in West Germany from an applicant for a magnetic levitation train demonstration project, provided that the location in West Germany is the only place the educational process can occur, the length of time is no longer than is reasonably necessary to complete the educational process, the donor only pays actual expenses, and appropriate records and gift disclosures are made. Under these circumstances, if the primary purpose of the trip is to educate Commission members as to the qualifications of a potential applicant for certification, acceptance of the transportation and airfare would not violate Section 112.313(4), Florida Statutes. CEO's 84-72, 85-13, 85-50, 86-73, and 87-29 are referenced.
Would a prohibited conflict of interest be created were the members and staff of the Florida High Speed Rail Transportation Commission to accept transportation to and hotel accommodations in West Germany from an applicant for a magnetic levitation train demonstration project in Florida?
Your question is answered in the negative, subject to the conditions set forth below.
In your letter of inquiry, you advise that the members of the Florida High Speed Rail Transportation Commission and its staff have been offered airfare and hotel accommodations for a fact finding, educational trip to West Germany. The purpose of the trip is to inspect a magnetic levitation train demonstration project.
Under Sections 341.401 through 341.422, Florida Statutes (Supp. 1988), the Commission is authorized to receive applications for a magnetic levitation demonstration project in Florida and to recommend one applicant for the project. That selection is reviewed by a hearing officer from the Division of Administrative Hearings, whose recommended order is sent to the Governor and Cabinet, the body which must issue the final order certifying the project and the applicant.
According to your letter, an applicant for certification for a magnetic levitation demonstration project has the exclusive right to market the German Transrapid Mag-Lev in Florida. This business entity has proposed chartering a plane and taking members of the Commission and the Commission's staff to Germany for an inspection of its operating magnetic levitation train. The Transrapid facilities in West Germany constitute the only site where the trains currently are operating. All of the research and development of the train was conducted at this facility, and this facility houses the technical staff which tests the various components of the system, as well as a 20 mile test track.
During the visit to West Germany, the Commission would meet with technical personnel; inspect the operations, safety and comfort of the trains; and conduct on-board assessments of the evaluation of safety, performance, and comfort. You question whether the acceptance of the offer would constitute a violation of the Code of Ethics.
Section 112.313(2), Florida Statutes, states:
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 statutory section prohibits a public officer or employee from accepting anything of value to the recipient based upon an understanding that the official action of the recipient will be influenced thereby. Since you have not indicated that such an understanding exists, Section 112.313(2), Florida Statutes would not appear to prohibit Commission or staff members from accepting the trip.
Section 112.313(4), Florida Statutes, states:
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, prohibits a public officer or employee from accepting anything of value if it he knows or should know that it was given to influence his official action. In contrast to Section 112.313(2), Florida Statutes, this statutory section does not state that the thing of value must be of value to the recipient, but only that the item must be a "thing of value." Section 112.313(4), Florida Statutes, would prohibit a member of the Commission from accepting the trip if he knows or should know that it was given to influence his official action.
Section 112.313(4) primarily focuses on the intent of the donor and the knowledge of the recipient in determining whether a gift is prohibited by that statutory section. In past opinions, we determined that whether a public official could be said to know that a gift was given to influence his official action could be determined by the value of the gift and the circumstances under which it was given. CEO 86-73. One circumstance which is indicative that the donor intends for the gift to influence the recipient's official action occurs when the gift is directly related to an upcoming official vote, recommendation, or other action that the official or employee must take. Another circumstance we have examined relates to the value of the gift; if the value of the gift is not so great as to be reasonably be expected to influence the public officer, we have found that Section 112.313(4) does not prohibit acceptance of the gift.
In CEO 85-13, for example, we determined that Section 112.313(4) did not prohibit a city council member from accepting a free trip to Israel from a tour agency, when it did not appear that the trip was given to influence his official action. In that opinion there was no indication that the trip was given in regard to official action that the public official would have to make relative to the persons offering the trip. Another example is CEO 85-50, where we found that no conflict of interest would be created were members of the Florida High Speed Rail Commission to take an educational tour of high speed rail systems at their own expense, with demonstration rides, ground transportation, and meals provided by potential applicants. In that case, the members paid for their own transportation and expenses paid by the entity offering the trip were deemed to be incidental. In an earlier opinion, CEO 84-72, we found that there was no prohibited conflict of interest where members of the Pesticide Review Council and officers and employees of the Department of Agriculture and Consumer Services took an educational tour of pesticide facilities. There was nothing to indicate there that the educational value of the trip was incidental or that the trip was given to influence any official action of those participating. Moreover, the majority of expenses were paid by various state agencies and, for the most part, only incidental expenses such as meals and ground transportation were paid by those sponsoring the tour. Similarly, in CEO 86-73, we did not find a prohibited conflict of interest where of a circuit court clerk attended the annual conference for the Florida Association of Court Clerks, where some meals and activities were sponsored by entities doing business with county governments. We determined that no prohibited conflict of interest was present because the purpose of the conference was educational--to provide continuing education for court clerks--and the majority of expenses were paid by county agencies. In that opinion, we stated that a public officer or employee is not prohibited from accepting hospitality within reasonable limits (such as meals and ground transportation). Finally, in CEO 87-29, we found that the Chief of the Bureau of Banking for the State Treasurer and representatives from other offices of State government could tour the out-of-state operations of a private banking corporation. The corporation paid only for lunch and transportation to the facility, and the trip lasted for one business day. It was noted that although the corporation offering the trip would like for the State to use its services, at the time of the opinion the State was unable to do so. These opinions indicate that where the purpose of the trip is primarily educational and serves a valid public purpose, where the costs paid by the donor are incidental, or where the trip is not related to any official action required to be taken by the recipient, Section 112.313(4), Florida Statutes might not be violated by acceptance of the trip.
Although it appears that the purpose of the trip to West Germany is directly related to a recommendation that the Commission members must make regarding which applicant should be certified to operate a magnetic levitation train in Florida and that its value is considerable, the overall circumstances described in your letter indicate that the trip's primary purpose is educational, consistent with the purpose of the Commission, and serves a valid public purpose. We are therefore of the opinion that accepting the trip would not violate Section 112.313(4) provided that certain precautions are taken to insure that the primary purpose of the trip remains educational. Such precautions should include insuring that:
1. The place to which the public official is traveling at the expense of the private donor is the only place at which the educational process can occur.
2. The location of the place to which the public official is traveling is reasonably related to the educational purpose of the trip and the system or process to be viewed.
3. The length of the trip is no longer than is reasonably necessary to complete the educational purpose of the trip.
4. The donor only pays the public official or employee for actual expenses incurred as part of the educational process. For example, no per diem or other sum over and above actual expenses should be paid by the donor.
5. Appropriate records are kept by the public official or body in question so that the public can determine what was given to a public employee or officer and how it was used.
6. Disclosures of gifts are made in accordance with applicable laws.
We believe that these guidelines will help to ensure that trips donated to public officials for educational purposes or to help officials in the performance of their public duties will serve a valid public purpose and will not result in any private or personal benefit which might influence the outcome of official decisions. If these guidelines are followed, we conclude that the Commission would not violate the Code of Ethics in accepting a trip to West Germany to view the German Transrapid Mag-Lev.
Accordingly, we find that a prohibited conflict of interest would not be created if the Florida High Speed Rail Transportation Commission and its staff were to accept airfare to and hotel accommodations in West Germany from a potential applicant for a magnetic levitation train project in Florida, provided the guidelines set forth in this opinion are followed.