GIFT ACCEPTANCE AND DISCLOSURE
FUND ESTABLISHED TO BENEFIT SON-IN-LAW
OF COUNTY COMMISSION MEMBER
To: Karen Marcus, Palm Beach County Commissioner (West Palm Beach)
A fund to help pay for expenses related to the illness of a County Commission member's son-in-law may be established, and contributions to the fund would not create a violation on the part of the Commission member of Sections 112.313(2) or (4), or 112.3148, Florida Statutes.
Would the Code of Ethics for Public Officers and Employees be violated were a fund to be established to pay expenses related to the illness of the son-in-law of a County Commission member, where the member would not solicit any contributions to the fund, would take steps to remain unaware of who had or had not contributed, and is not responsible for any of her son-in-law's expenses?
Your question is answered in the negative.
You advise that last year your son-in-law suffered a stroke at the age of 31. Friends of his and your daughter, as well as some of your friends, would like to raise money to help with his continuing expenses. You relate that you would not be involved in any way with this fundraising, would not attend the fundraising event, and would ask not to be informed of who contributed. You further advise that you are not responsible for any of your daughter's or son-in-law's financial obligations and that the money raised would not benefit you in any way. You are concerned that some persons who on occasion appear before the Board of County Commissioners may contribute, and you write to inquire whether this fundraising effort would create for you a violation of any provision of the Code of Ethics for Public Officers and Employees.
Several sections of the Code are implicated here. Section 112.3148(3), Florida Statutes, states:
A reporting individual or procurement employee is prohibited from soliciting any gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.
This section prohibits you from soliciting a gift from any of the specified donors, if the gift is for your own benefit or that of a member of your immediate family.1 Because your daughter, as well as your son-in-law, will benefit from the funds raised, you are prohibited from soliciting contributions from a political committee or committee of continuous existence, or a lobbyist of your agency, or their partner, firm, employer, or principal. However, as you have stated that you will not be soliciting contributions from anyone, this section is inapplicable here.
Section 112.3148(4), Florida Statutes, states:
A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift.
This section prohibits you, or anyone acting on your behalf, from accepting "directly or indirectly" any gift worth more than $100 from the donors named in the statute. You have stated that you will not be soliciting or accepting contributions; thus it cannot be said that you accepted anything directly from any prohibited donor. Nor does it seem that the contributions could be viewed as an "indirect" gift to you. Pursuant to Rule 34-13.310(6)(a), Florida Administrative Code,
Where a gift is provided to a person other than the reporting individual or procurement employee by a political committee or committee of continuous existence as defined in the campaign financing laws (Chapter 106, F.S.), by a lobbyist who lobbies the agency of the reporting individual or procurement employee, or by the partner, firm, employer, or principal of a lobbyist, where the gift or the benefit of the gift ultimately is received by the reporting individual or procurement employee, and where the gift is provided with the intent to benefit the reporting individual or procurement employee, such gift will be considered an indirect gift to the reporting individual or procurement employee.
You have advised that you are not responsible for your daughter's or son-in-law's debts, and nothing in the information you have provided suggests that the contributions would benefit you in any way. Under these circumstances, this provision would not be violated by the proposed fundraising.
Sections 112.313(2) and (4), Florida Statutes, provide in relevant part:
SOLICITATION OR ACCEPTANCE OF GIFTS.—No public officer, employee of an agency, local government attorney, 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, local government attorney, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes.]
UNAUTHORIZED COMPENSATION.—No public officer, employee of an agency, or local government attorney or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer, employee, or local government attorney 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, employee, or local government attorney was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes.]
Section 112.313(2) prohibits you from soliciting or accepting anything of value—not just to yourself but to the recipient—with the understanding that your official actions will be influenced thereby. This section could be violated were you to, for example, condition a vote on the interested party's making a contribution. However, nothing in the materials you have submitted indicate that that this would be the case. To the contrary, you have expressly stated that you do not intend to solicit any contributions. Therefore, this section would not be violated by the fundraising effort.
Section 112.313(4) prohibits you or your spouse or minor child from accepting anything under circumstances where you know or should know that it is being given in an effort to influence you. Again, you have stated that you will not be involved personally in the fundraising effort. Further, to the extent that you do not know who has or has not contributed, it cannot be said that you know or should know that the contributions were for the purpose of influencing you. As you have taken and will continue to take steps to distance yourself from the fundraising effort (including not attending the event), this statute also would not be violated.
You have asked for guidance with respect to the steps that should be taken in the event you inadvertently discover that someone has made a contribution. We recognize that it may not be possible for you to prevent someone from telling you that they donated to this cause, either because people would naturally expect you to be interested in the effort or because they might hope to curry favor with you by informing you of their contribution. Your after-the-fact awareness of a contribution having been made would not constitute a violation, because you still would not have "solicited or accepted" anything, but you are sensitive to the potential it could create for an appearance of impropriety. The law does not provide a mechanism for addressing this possibility, but in the event the topic of your son-in-law's illness comes up, it may be advisable to inform the individual that while you appreciate their interest, you have placed a self-imposed "cone of silence" around yourself with respect to the fundraising effort.
You have suggested that in the event you become aware that a particular person or entity made a contribution, if the contributor appears before the County Commission you would be willing to voluntarily disclose the fact that he or she had contributed. The voting conflicts law does not prohibit you from voting on a measure that would inure to the gain or loss of a person who has made a gift to your son-in-law; nor does it require the disclosure you have suggested. Moreover, insofar as it could be argued that you would be biased in favor of contributors, it could also be argued that would be biased against those who did not contribute. Therefore, without making an announcement before every measure, stating whether the interested party did or did not contribute, or that his contribution status is unknown, it seems to us that there is little to be gained from making the announcement in cases where you know a contribution has been made.
Accordingly, we find that under the circumstances you have described, it would not create a violation of the Code of Ethics for you were your daughter or friends of her or your family to engage in fundraising for the benefit of your son-in-law.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 4, 2009 and RENDERED this 9th day of December, 2009.
Cheryl Forchilli, Chair
Defined in Section 112.3148(2)(a) as "any parent, spouse, child, or sibling."