INTEROFFICE MEMORANDUM TO: FROM: DATE: CASE: OFFICE FILE: DOCKET NUMBER: RE: Robin Lauriault, Senior Partner

Mary Jones, Junior Partner October 20, 2012 Florida Dept. of Environmental Protection v. Jim Donaldson 90-114 None at this time; no action has been filed. Whether Donaldson has violated 17

ASSIGNMENT You have asked me to do a preliminary analysis of 23 State Code Ann. 17 (1980) to assess whether our client, Jim Donaldson, has violated this statute. No research on the statute has been undertaken thus far, but I will indicate where such research might be helpful. LEGAL ISSUE When a government employee is asked to rent a car for his agency, but uses the car for personal business before he signs the lease, has this employee violated 17, which prohibits the use of property leased to the government for nonofficial purposes? FACTS Jim Donaldson is a government employee who works for the Florida Department of Envionmental Protection. On February 12, 2012, he is asked by his supervisor, Fred Jackson, to rent a car for the agency for a two-year period. At the ABC Car Rental Company, Donaldson is shown several cars available for rental. He asks the manager if he could test drive one of the cars for about 15 minutes before making a decision. The manager agrees. Donaldson then drives the car to his home in the area, picks up a TV, and takes it to his sister's home. When he returns, he tells the manager that he wants to rent the car for his agency. He signs the lease and drives the car to the agency. The supervisor, however, is informed of the trip that Donaldson made to his sister's house with the TV. Donaldson is charged with a violation of 17. Because he is a new employee at the agency, he is fearful that he might lose his job. ANALYSIS Donaldson is charged with violating 23 State Code Ann. 17 (1980), which provides as follows: 17. Use of Government Property An employee of any state agency shall not directly or indirectly use government property of any kind, including property leased to the government, for other than officially approved activities. To establish a violation of this statute, the following elements must be proven: (1) The defendant is an employee of a state agency. (2)(a) The defendant used government property of any agency including property leased to the government, or (2)(b) indirectly used government property of any kind including property leased to the government. (3) The defendant used the property for other than officially approved activities. The main problem in this case will be the second element. Employment in a State Agency

Donaldson works for the Florida Department of Envionmental Protection.which is clearly a State agency under the statute. Use of Property Leased to the Government The central issue is whether Donaldson used property leased to the government. (The rented car was not owned by the government. Hence it was not "government property." And Donaldson acted directly rather than indirectly such as by causing someone else to drive the car.) There should be no dispute that when Donaldson drove the car to his sister's house, he directly used property. But was it property leased to the government? Donaldson's best argument is a fairly strong one. His position will be that when he made the trip to his sister's, he had not yet signed the lease. He would argue that "leased" means contractually committed to rent. Under this definition, the car did not become property leased to the government until after he returned from his sister's house. No costs were incurred by the government because of the test drive, unless we consider Donaldson's salary a cost, which would be payed in any case, no matter what, during working hours. Rental payments would not begin until the car was rented through the signing of the lease. The supervisor, on the other hand, will argue for a broader definition of "leased"- that it means the process of obtaining a contractual commitment to rent, including the necessary steps leading up to that commitment. under this definition. Was the car was leased to Donaldson when he made the unauthorized trip? The test drive was arguably a necessary step in making the decision to sign a long-term leasing contract, thus part of the process. The goal of the legislature in enacting 17 should be kept in mind when trying to determine the meaning of any of the language of this statute. The intent of the legislature was to avoid the misuse of government resources. Public employees should not take advantage of their position for private gain. To do so would be a violation of the public trust. Yet this seems to have been what Donaldson did. While on the government payroll, he obtained access to a car and used it for a private trip (as well as for the legitimate purpose of a test drive). In view of legislative intent, we might conclude that leasing in 17 is not limited to the formal signing of a leasing contract. Anything that is necessarily part of the process of signing that contract should be included. The legislature wanted to prevent the misuse of government resources in all aspects of the leasing of property. It is not clear from the facts whether the manager of the ABC Rental Company knew that Donaldson was considering the rental on behalf of a government agency when he received permission to take the test drive. The likelihood is that he did know it, although this fact should be checked. If the manager did know, then Donaldson may have used the fact that he was a government employee to obtain the permission (although it seems likely that any respectable person would have been accorded a test drive). But Donaldson likely held himself out as a reliable individual because of the nature of his employment. This reinforces the misuse argument under the broader definition of "leased" presented above. I have not yet checked whether there are any court opinions or agency regulations interpreting 17 on this point. Nor have I researched the legislative history of the statute. All this should be done soon. Officially Approved Activities Nothing in the facts indicates that Donaldson's supervisor, Frederick Jackson, gave him any authorization to make the TV trip. Even if Jackson had authorized the trip, it would probably not be officially approved, since the trip was not for official (i.e., state) business. CONCLUSION

Donaldson has the stronger argument based on the language of the statute. The property simply was not "leased" at the time he made the TV trip. I must admit, however, that the agency has some very good points in its favor. Unlike Donaldson's technical argument, the agency's position is grounded on legislative intent. Yet on balance, Donaldson's argument should prevail. RECOMMENDATIONS Some further investigation is needed. I will seek to learn whether the ABC Rental Company manager knew that Donaldson was a government employee at the time he asked 'for the test drive. In addition, legal research should be undertaken to find out if any court opinions and agency regulations exist on the statute. A check into the legislative history of 17 is also needed. Finally, I recommend that we send a letter to Donaldson's supervisor, Fred Jackson, explaining our position. I have attached a draft of such a letter for your signature in the event you deem this action appropriate. There is one matter that I have not addressed in this memo. Donaldson is concerned that he might lose his job over this incident. Assuming for the moment that he did violate 17, it is not at all clear that termination would be an appropriate sanction. The statute is silent on this point. Let me know if you want me to research this issue.