EXECUTIVE BRANCH LOBBYING
AGENCY OFFICIALS AND EMPLOYEES BUYING TICKETS TO ASSOCIATION'S ANNUAL LEGISLATIVE RECEPTION
To: Tamela I. Perdue, Esquire, on behalf of Associated Industries of Florida (Tallahassee)
An association that lobbies executive branch agencies can host an event for Executive Branch agency officials and employees that includes food, beverages, and entertainment and collect a flat, per-person entrance fee based upon the total cost to plan, produce, stage, and clean up after the event divided by the number of persons reasonably expected to attend. By contemporaneously giving equal or greater consideration, Executive Branch agency officials and employees have not received a lobbying expenditure prohibited by Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, L.O.F.
Has an association that lobbies executive branch agencies made an expenditure prohibited by Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, L.O.F., when it hosts a reception and charges agency officials and employees a per-person entry fee to attend?
Under the specific circumstances addressed herein, your question is answered in the negative.
You write that your law firm represents Associated Industries of Florida (AIF), which, according to its website, is a "voluntary association of diversified businesses, created for the purpose of pursuing mutual benefit through cooperation in programs designed to create and foster an economic climate in Florida conducive to the growth, development, and welfare of industry and business and the people of the state."1 The website acknowledges that AIF represents the interests of the Florida business community before state government by lobbying the Executive Branch, the Legislative Branch, the Judicial Branch (by filing amicus briefs and lawsuits), and the public (through AIF Service Corporation). Lobbyists representing AIF and its subsidiary corporations are registered to lobby Executive Branch agencies.2
Traditionally, AIF has, along with corporate sponsors, hosted a legislative reception at its Tallahassee headquarters the evening prior to the opening day of the Florida Legislature. This invitation-only event has a guest list of approximately 2,000 people, including members of the Legislature and their staff, as well as Executive Branch agency officers and employees. Due to the recent enactment of Chapter 2005-359, LOF, which amended Section 11.045, F.S., involving lobbyists who lobby the Legislature, and Section 112.3215, F.S., involving lobbyists who lobby Executive Branch agencies, AIF received guidance from counsel for the House and the Senate on how to value the event and, as a result, developed an admission price of $28 per-person for legislators and staff so that their attendance would not be considered a prohibited lobbying expenditure. Now, AIF is seeking guidance on the applicability of the law as it relates to Executive Branch lobbyists and plans to charge the same admission fee to Executive Branch agency officials and employees that it is charging legislators and legislative staff.
Materials submitted with your opinion request indicate that AIF developed an admission price of $28 per-person based upon guidance it received from the House and Senate counsels. It appears that this figure was derived from using either the greater of 1) the cost to AIF or, 2) the fair market value of the invitations, food, beverage, entertainment, decorations, equipment and tent rentals, valet parking expenses, security, etc. That total was then divided by the number of persons expected to attend using either the actual head count from last year's event or the number of persons the caterers and bartenders are prepared to serve.
Section 112.3215(6)(a), Florida Statutes,3 provides:
Notwithstanding s. 112.3148, s. 112.3149, or any other provision of law to the contrary, no lobbyist or principal shall make, directly or indirectly, and no agency official, member, or employee shall knowingly accept, directly or indirectly, any expenditure.
The term "expenditure" is defined in Section 112.3215(1)(d), Florida Statutes, to mean
a payment, distribution, loan, advance, reimbursement, deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying. A contribution made to a political party regulated under chapter 103 is not deemed an expenditure for purposes of this section.
The term "lobbies" is defined in Section 112.3215(1)(f), Florida Statutes, to mean
Seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement or an attempt to obtain the goodwill of an agency official or employee.
"Agency official" or "employee" is defined in Section 112.3215(1)(b) to mean
any individual who is required by law to file full or limited public disclosure of his or her financial interests.
The only agencies covered by the law are those provided in Section 112.3215(1)(a), which defines "agency" to mean
the Governor, Governor and Cabinet, or any department, division, bureau, board, commission, or authority of the executive branch. In addition, "agency" shall mean the Constitution Revision Commission as provided by s. 2, Art. XI of the State Constitution.
In the Interim Lobbying Guidelines for the House and Senate released on January 20, 2006, the Legislature has interpreted Chapter 2005-359, L.O.F., to conclude that an expenditure is not prohibited when equal or greater value is given contemporaneously by the recipient to the donor. See Interim Guidelines, pp.7-8. The Interim Guidelines provide as follows:
Therefore, it is not an expenditure if:
1. The fair market value of the event, meeting, or other activity, including any food, beverage, transportation, lodging or any other thing of value, can readily be determined, and
2. The legislator or legislative employee pays his or her pro rata share of the total fair market value to the person or organization hosting the event contemporaneously with the time of attending or participating in the event.
Thus, if a lobbyist or principal provides $35 worth of goods or services to a legislator or legislative employee but the legislator or legislative employee contemporaneously provides equal or greater consideration, the lobbyist or principal has not provided anything of value, thus, there is no "expenditure." [Emphasis in original.]
Additionally, in the Frequently Asked Questions portion of the Interim Guidelines, a situation analogous to the pre-Session AIF party was answered as follows:
Question: Can a lobbyist or principal host an event with food, beverages, entertainment, or other personal benefit for legislators or legislative employees and collect from each legislator or legislative employee, a flat, per-person entrance fee based on the total cost to plan, produce, stage, and clean up after the event, divided by the number of persons reasonably expected to attend?
Interim Guidelines, p. 13, Question 5.
We concur in the guidance provided to AIF by counsel for the House and Senate and extend it to situations involving Executive Branch agency officials and employees. By requiring agency officials and employees who have been invited to the reception to pay a flat per-person fee that is based on the total cost to plan, produce, stage, and clean up after the event, divided by the number of persons reasonably expected to attend, AIF has not made, and an agency official, member, or employee has not accepted, an expenditure made for the purpose of lobbying. Instead, the agency official or employee who purchases an admission ticket will be contemporaneously providing equal or greater consideration for the fair market value of the event. Under these circumstances, there is no expenditure.
Given the short notice with which we were asked to render an opinion, we are not in a position to verify the event's expenses or how AIF arrived at the $28 per-person figure. Assuming that all anticipated expenses were included in the calculation and that the number of anticipated guests was accurately projected, AIF will not make a prohibited expenditure when it invites agency officials and employees to purchase a ticket in order to be admitted to its legislative reception. However, this assumes that there will be an orderly process to gain admission and that AIF will actually be checking tickets and/or receipts.
You also ask whether the steps AIF has taken to notify agency officials and employees of their responsibility to purchase admission tickets if they are in the class of persons who file financial disclosure are sufficient to protect it from liability in the event that persons who should have purchased admission tickets gain entrance without paying. Materials accompanying your opinion request indicate that no agency official or employee will be admitted to the event without a pre-purchased ticket or receipt for payment at the time of entrance. Although the letter accompanying your invitation also states that if invitees bring guests who are not affected by the expenditure prohibition they may obtain complimentary tickets, you have orally represented that the complimentary tickets are only available to the event's corporate sponsors and Association members, and that all persons will be required to present a ticket or paid receipt to gain entry into the party. In any event, complimentary tickets should not be used as a means to circumvent the prohibition in Section 112.3215(6)(a), Florida Statutes, against lobbyists and principals making direct or indirect lobbying expenditures and agency officials and employees knowingly accepting them. In our view, which is consistent with that of the House and Senate counsel, if spouses, significant others, and invitees accompany an agency official or employee to the AIF reception because of their relationship to the agency official or employee and receive a complimentary ticket, this would constitute an indirect expenditure made to or on behalf of the agency official or employee and is prohibited by Section 112.3215(6)(a), Florida Statutes.
Your inquiry is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 3, 2006 and RENDERED this 8th day of March, 2006.
Thomas P. Scarritt, Jr., Chairman
 AIF lobbyists are also registered to lobby the Legislature. However, this opinion only addresses Executive Branch lobbyists because the Commission is without jurisdiction or authority to render advisory opinions interpreting Section 11.045, Florida Statutes. Notwithstanding, since the laws for Legislative and Executive Branch lobbyists are similar, and since many lobbyists are registered to appear before both the Legislature and Executive Branch agencies, it is appropriate that the guidance for Legislative lobbyists and Executive Branch lobbyist be consistent to the extent possible.
All statutory cites are to the Florida Statutes, as amended by Chapter 2005-359, Laws of Florida.