CEO 75-21 -- February 14, 1975

STANDARDS OF CONDUCT

ACCEPTANCE BY STATE BOARD OF "EDUCATIONAL" TRIP SPONSORED BY PRIVATE CORPORATION REGULATED BY THE BOARD

To: Peter P. Baljet, Executive Director, Department of Pollution Control, Tallahassee

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Section 112.313(1), F. S., as amended by Ch. 74-177, Laws of Florida, prohibits officers or employees from accepting gifts, favors, or services of value to the recipient that would influence a reasonably prudent person in the discharge of official duties. In this instance, the Florida Power and Light Company offered to finance a trip for members and staff of the Pollution Control Board to three nuclear and fossil fuel-burning power plants. The trip is of obvious value to the board since FPLC financing is necessary for the excursions and the board is enriched to the extent of the expense amounts paid. Secondly, construing "influence" to mean alteration of an officer's independence and impartiality of judgment, the FPLC-sponsored trip could create an impression upon board members distinguishable from that created by a neutral party not providing such services. Therefore, in order to retain an ethical relationship between the Pollution Control Board and the entities it regulates, the invitation from FPLC should be denied by the board.

QUESTION:

Does acceptance by the Florida Pollution Control Board of an invitation from the Florida Power and Light Company (FPLC) to visit FPLC's nuclear power plants in Florida at FPLC's expense in order to educate the board in the operation and environmental effects of such plants, violate the Code of Ethics, Part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida?

Your question is answered in the affirmative.

As indicated in your letter of inquiry, the Florida Power and Light Company (hereinafter referred to as FPLC) has extended an invitation to the Florida Pollution Control Board and key staff members to visit its nuclear power plants at Turkey Point and in St. Lucie County. The purpose of this invitation is to give the Pollution Control Board better insight into the operation of these plants and in the manner in which FPLC is attempting to effectuate optimum environmental practices.

The reason for seeking an advisory opinion from the Ethics Commission rests in the fact that since the Department of Pollution Control is charged with the task of certification of power plant sites and operations, there is a reasonable question of propriety in undertaking such a trip at the expense of a private entity which is subject to the board's regulation.

For the reasons stated below, we conclude that acceptance of such an offer would constitute a conflict of interest.

The section of the Code of Ethics applicable in such a situation states:

No officer or employee of a state agency . . . shall accept any gift, favor, or service of value to the recipient, that would cause a reasonably prudent person to be influenced in the discharge of official duties. [Section 112.313(1), F. S., as amended by Ch. 74-177, supra; emphasis supplied.]

As we perceive this prohibition, two criteria must exist: First, the gift, favor, or service must be of value to the recipient and, second, the value must be of such a nature that it would cause a reasonably prudent person to be influenced in the discharge of his official duties. Application of the Code of Ethics to the situation you have presented will therefore be made with these two criteria in mind.

The FPLC has offered to finance, voluntarily, a trip for the members of the Pollution Control Board and key staff members to visit its nuclear and fossil fuel-burning power plants at Crystal Springs, St. Lucie County, and Turkey Point in south Florida. The company will pay the cost of transportation to and from the power plant sites and will also provide the board and staff members with meals and lodging. Is the Pollution Control Board then the recipient of something of value? We must answer this question in the affirmative.

First of all, the expenses have financial value and, by permitting these expenses to be paid on their behalf, the board is enriched to the extent of the amount paid. In addition, we believe the trip itself will be of value to the board in its regulatory functions. The fact that the trip could not have been made without the financing offered by FPLC is further evidence that a benefit is being conferred upon the agency.

The more difficult question which we must answer is whether the value of the gifts and services offered by FPLC is such as would cause a reasonably prudent person to be influenced in the discharge of his official duties? We cannot say that such influence would not, in fact, exist.

To assess whether a reasonably prudent person in the position of a member of the Pollution Control Board would be influenced by the services rendered by the FPLC, we must consider the meaning of the term "influence." In its statement of legislative intent and declaration of policy, the Code of Ethics provides that "[i]t is essential to the proper conduct and operation of government that public officials be independent and impartial . . . ." Section 112.311(1), F. S. With this in view we believe the term "influence" must be read to mean the alteration of an official's independence and impartiality of judgment.

In the situation which you have presented, we cannot say that a reasonably prudent person would not lose a degree of his impartiality and might therefore be influenced in the discharge of his duties. By sponsoring the proposed trip, the FPLC will be creating an impression upon the board members distinguishable from that of a neutral party not providing such gifts or services. Whether this impression is favorable or unfavorable is irrelevant for purposes of our consideration. What must be emphasized is that, due to this gift and its value, the board members would formulate an impression of FPLC that would unconsciously or consciously be assessed in any consideration of a matter brought before the Pollution Control Board by FPLC. Such an additional factor would not be present in consideration of a matter before the board where the party has remained neutral.

In summary, we believe that the spirit as well as the letter of the law would be violated by the acceptance of the gifts or services at issue. The relationship between the Pollution Control Board and the entities it regulates must be zealously guarded to retain independence and impartiality and the appearance of neutrality. Such a posture will best be preserved by a denial of the proposed invitation.