We all buy new equipment from time to time, and when we are getting ready to make that big purchase, we usually do a lot of research. This often includes going to other fire departments that already own what we may be looking at and visiting manufacturing plants to see how the equipment is put together.

However, we need to be alert to the fact that when potential bidders are covering some or all of the cost of this research, problems can arise. Take, for instance, the following case.

On Feb. 1, 2001, Ferrara Fire Apparatus Inc. placed a bid with the Houma (La.) Fire Department for the manufacture of a fire truck. On Feb. 14, 2001, Fire Chief Brian Hebert and Capt. Paul Breaux traveled with a Ferrara Fire Apparatus salesman on a one-day trip to Alma, Ark., to inspect a similar fire truck in order to determine if it met the fire department's specifications and standards. Ferrara Fire Apparatus paid $710 for Hebert's and Breaux' airfare, as well as $65 for their use of a rental car.

The ethics code contained in Louisiana Statutes 42:1115 provides that “No public servant shall solicit or accept … any thing of economic value as a gift or gratuity from any person … if such public servant knows or reasonably should know that such person …[h]as or is seeking to obtain contractual or other business or financial relationships with the public servant's agency” or “[h]as substantial economic interests which may be substantially affected by the performance or nonperformance of the public [servant's] official duty.”

Because of Hebert's and Breaux' acceptance of the airfare and use of a rental car, the Louisiana Board of Ethics conducted a private investigation of this matter. After the investigation was completed, the board also conducted a public hearing to explore whether there had been a violation of the ethics code.

At the public hearing, it was disclosed that Hebert and Breaux had already signed consent letters admitting to violations of the ethics code by receiving the airfare and use of the rental car from Ferrara Fire Apparatus when the company was a potential vendor of fire trucks for the Houma Fire Department. The board also received testimony from Chris Ferrara, owner and president of Ferrara Fire Apparatus.

At the conclusion of the hearing, the board found that Ferrara Fire Apparatus had violated the ethics code and imposed a fine of $500 against the company. The board then suspended all but $100 of the fine, conditional upon the company's future compliance with the ethics code.

Ferrara Fire Apparatus appealed the decision to the First Circuit Court of Appeals of the State of Louisiana, ultimately resulting in the decision In re: Ferrara Fire Apparatus Inc., No. 2003 ca 0446, Court of Appeal of Louisiana, First Circuit (2003). In the appeal, Ferrara Fire Apparatus argued that the ethics board was incorrect in finding that the trip was a “gift” within the meaning of Louisiana ethics code. Ferrara Fire Apparatus further argued that the board was mistaken when it failed to apply an exception in the ethics code to the definition of a “thing of economic value” because, according to the apparatus company, the trip was a “promotional item having no substantial resale value.”

The issue before the court, then, was whether Ferrara Fire Apparatus violated the ethics code by providing airfare and rental car use for the fire chief and the captain of the Houma Fire Department while the fire department was considering a bid by Ferrara Fire Apparatus for the sale of fire trucks.

The court ruled that the ethics board had reached the correct conclusion. The court went on to state that it felt, as did the board, that Ferrara Fire Apparatus' violation was minor. However, the court was constrained by the clear language of the ethics code.

The court noted that Louisiana Statutes 42:1117 provides, in pertinent part, that “No … person shall give … to any public servant … any thing of economic value which such public servant … would be prohibited from receiving by any provision of this Part.” In other words, the law not only prohibits public servants from receiving anything of economic value as a gift or gratuity, but also prohibits other persons from making such a gift. Because it was undisputed that Hebert and Breaux admitted to a violation of the ethics code when they accepted the airfare and use of the rental car from Ferrara Fire Apparatus while the fire department was considering the company's bid for the sale of fire trucks, the only question remaining to be decided was whether the payment for out-of-state transportation was a “thing of economic value.”

The term “thing of economic value” is defined in Louisiana Statutes 42:1102(22)(a) as “money or any other thing having economic value, except promotional items having no substantial resale value: food, drink, or refreshments consumed by a public servant, including reasonable transportation and entertainment incidental thereto, while the personal guest of some person.” (Emphases added.)

It would seem that the specific exemption for “reasonable transportation” ought to provide relief here, but unfortunately, the “reasonable transportation” exception applies only to legislators and employees in the legislative branch of the Louisiana state government for on-site inspections within the state. Consequently, the case could not be resolved on this basis.

Ferrara Fire Apparatus argued that the airfare and the use of the rental car were promotional items having no substantial resale value because the one-day trip to Arkansas was for the sole purpose of promoting Ferrara Fire Apparatus fire trucks. This argument would seem to hold some logic, as it's unlikely that Hebert and Breaux could have resold their airline tickets. The court found no merit in this argument, however, stating that because of the significant price of the airfare at $710, it certainly had economic value.

The court further ruled that the Ferrara Fire Apparatus argument that providing transportation to Hebert and Breaux was not a “gift” had no merit. Although the Louisiana Ethics Code does not specifically provide a definition for “gift,” the court resorted to the Merriam-Webster's Collegiate Dictionary, 10th Edition, in noting that the generally prevailing meaning of “gift” is something that is voluntarily transferred by one person to another without compensation. Here, Ferrara Fire Apparatus admitted that it had voluntarily provided the transportation to Hebert and Breaux, and that Ferrara Fire Apparatus was not compensated for the cost of the transportation. Therefore, the airfare and car rental costs were “gifts” and were specifically prohibited by the ethics code.

The court went on to observe that the primary objective of the ethics code is to prevent not only the actuality of conflicts of interest, but also to prevent the occurrence of those situations that tend to create a perception of conflicts of interest. A conflict of interest is a situation that would require an official to serve two masters, presenting a potential, rather than an actuality, of wrongdoing. In other words, the wrongdoing does not actually have to occur for a prohibited conflict to exist.

The court said that while it appeared that Ferrara Fire Apparatus was not guilty of actual wrongdoing, and that while its actions did not constitute an egregious violation, the one important objective of the ethics code — to prevent potential conflicts of interest — was violated. Of particular interest, the court went on to note that in most instances, the action of Ferrara Fire Apparatus would have been a legitimate business endeavor if a public entity were not involved.

However, with public servants and entities, much more stringent rules apply to business dealings. What would normally be a proper and legitimate business activity can be a technical violation of ethics, and so it was here. Ferrara Fire Apparatus created a public perception of a conflict of interest, which is what an ethics code is designed to prevent. Consequently, the court found that the ethics board had correctly applied the law and affirmed its decision finding Ferrara Fire Apparatus guilty of violating the ethics code.

This case illustrates how easy it can sometimes be to run afoul of the law while doing something with the best intentions. The next time you're thinking about accepting a vendor's offer of assistance, you may want to consider the following:

• Does your state or individual department have an ethics code or something similar? Does it cover what you are about to do?
• It's important not only to avoid actual wrongdoing, but also a situation that can give the appearance of impropriety, even if nothing wrong really happens.
• Acting in good faith will not provide a defense if you have indeed violated an ethics code. The “pure heart and empty head” explanation won't work.
• It isn't necessary to derive personal benefit from an action for it to violate ethics.
• Just because something may be acceptable or commonplace in the private sector doesn't make it acceptable in the public sector.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He has been legal counsel for the Wisconsin State Fire Fighters Association, legal counsel and Wisconsin director for the National Volunteer Fire Council Inc., president of the NVFC Foundation, and current NVFC chair. Stittleburg sits on the NFPA board of directors and has served on the committee for NFPA 1500, Fire Department Occupational Safety and Health Program.