CEO 89-31--July 27, 1989
PORT OFFICIALS TRAVELING ON SHIPS AT DISCOUNTED
RATE WHEN SHIPS PAY TARIFF TO PORT
To: Linwood Cabot, Attorney, Port Everglades Authority (Fort Lauderdale)
SUMMARY:
No prohibited conflict of interest would be created if the Port Director, Deputy Port Director, or the Port Commissioners of a deep-water port were to pay an existing published discounted rate to take a cruise on a ship owned or operated by a company which pays tariffs to use the facilities of the Port. Sections 112.313(2) and 112.313(4), Florida Statutes, would not be violated as there is no understanding or knowledge that the rate is given to influence any official action of the Port Commissioners or employees. CEO 83-26 and CEO 77-114 are referenced.
QUESTION:
Would a prohibited conflict of interest be created were the Port Director, Deputy Port Director, or the Port Commissioners of a Port Authority to take a cruise on a cruise ship owned or operated by a company which pays a tariff to use Port facilities, and if the Director and Deputy Director pay existing published discounted interline rates for the cruise?
Your question is answered in the negative.
You advise us that you are the attorney for the Port Commission of the Port Everglades Authority. You have been directed to ask for an opinion on behalf of the Port Director, Deputy Port Director, and the Port Commissioners of the Port Authority, who wish to know if they can take a cruise at a discounted rate on a ship which is owned or operated by a company which pays a fee to the Authority for use of its facilities.
The Port Everglades Authority is a special taxing district whose boundaries are co-terminus with the boundaries of Broward County. Approximately 24 cruise lines operate cruises in and out of the Port. These cruise lines pay the Authority for use of its facilities pursuant to charges published in a tariff issued by the Authority. The tariff is approved by the Port Commission and is filed with the Federal Maritime Commission in Washington, D.C. Rates and charges for use of Port facilities are uniformly applied, as published in the tariff.
The Port Commission consists of five elected Commissioners and two who are appointed by the County Commission. The Commission, as governing body of the Port Everglades Authority, is responsible for establishing policies for operating the deep water facilities.
The Port Director is the Chief Executive Officer of the Port Everglades Authority; he oversees the operation of the Port and generally manages its affairs. The Deputy Port Director is an assistant to the Director and oversees the operation of the Port during absences of the Director.
These individuals wish to take a cruise on one of the lines which pay a fee to the Authority, paying a discounted interline rate to travel on the cruise line. The discount rate is published and equally available to all persons associated with the travel industry, such as employees of airlines, bus lines, or railroads, on a "space available" basis. The Port Director, Deputy Director, and Commissioners would not receive preferred treatment or a special rate beyond the published discount simply because they work for the Port.
In regard to your question, Section 112.313(7)(a), Section 112.313(2), and Section 112.313(4), Florida Statutes, provide as follows:
CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.--No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee . . . ; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties.
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.
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.
In CEO 83-26, we stated that a highway patrol officer could purchase a car from a dealership which did business with the Department of Highway Safety and Motor Vehicles because the purchase did not interfere with the full and faithful discharge of the officer's public duties. Similarly, in CEO 77-114 we determined that a prohibited contractual relationship was not created by a city employee's having a checking account with a bank which was doing business with the city, where the employee did not decide where the city would deposit its funds. We further opined in these opinions that Sections 112.313(2) and 112.313(4) were not violated as the facts did not indicate that there was knowledge of or an understanding that the free checking account or the low price of the vehicle were intended to influence any official action.
We believe that your question is answered by these previous opinions. In the facts you have described we do not find that the full and faithful discharge of the Port Authority Commissioners' or employees' duties would be influenced by taking a cruise on a line which pays a tariff to the Port Authority. Therefore, we do not believe that Section 112.313(7) would be violated were these officials to take a cruise on a line which may do business with the Port. We also note that Section 112.313(12)(c) exempts passage on a common carrier from the prohibitions of Section 112.313(7).
Nor do we believe that, based upon the information you have provided to us, the discounted fare is offered to Port officials and employees with the intent of improperly influencing their official action. The fare is available to all employees or officials associated with the travel industry on a space available basis, including airlines, bus lines, and railroads. We note that it is also available to members of the press. As with the situation described in CEO 77-114 and CEO 83-26, we do not believe that the Port officials would violate Sections 112.313(2) and (4) by traveling at this discounted rate, where there is no knowledge or understanding that it was given to influence their official actions.
We bring to your attention, however, Section 112.313(6), Florida Statutes, which states:
MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall 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.
Although none of the information you have provided indicates that any of these individuals have used or even attempted to use their official positions to obtain a special benefit, such as preferential treatment or rates, we must caution that such a use of position would constitute a violation of the Code of Ethics.
Accordingly, we find that no prohibited conflict of interest would be created were the Director, Deputy Director, or Commissioners of the Port Authority to purchase tickets for a cruise from a cruise line which pays tariffs to the Authority, based on published discounted rates available to any member of the travel industry on a space available basis, when none of the individuals have used or attempted to use their positions to obtain preferential rates or treatment.