CEO 91-39 -- July 19, 1991
DISCLOSURE OF USE OF BILLBOARD PROVIDED TO STATE REPRESENTATIVE TO ADVERTISE DISTRICT OFFICE
To: (Name withheld at the person's request.)
A State Representative is not prohibited under the gift law from accepting the free use of billboard space provided by an outdoor advertising company on which is placed a sign informing citizens that their State Representative is available to help with their questions or concerns. The use of billboard space offered in 1991 is governed by Chapter 90-502, as amended by Chapter 91-292. Because the advertising company offering the billboard is not a political committee, a committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, the offer and use may be accepted.
Membership in an association employing a lobbyist does not make the member the principal of the lobbyist unless the member exercises substantial control over the operations and the policies of the association. The offer of use of the billboard does not come within the Section 112.312(9)(b)1, Florida Statutes, exception to the definition of reportable "gift" since that section is intended to apply to the recipient's private or personal employment or business and not to his or her public service. As a gift, the acceptance of billboard space should be reported on Form 9.
Are you, a State Representative, prohibited from accepting the free use of billboard space provided by an outdoor advertising company as a gift on which is placed a sign informing citizens that their State Representative is available to help with their questions or concerns?
In your letter of inquiry and a telephone conversation with our staff, you have advised that you serve as a member of the Florida House of Representatives. You also have advised that an outdoor advertising company offered to run a nonpolitical public service announcement for your district office on a space available basis (in other words, on its unbought or unused spaces). You advise that at such time as the space on the billboard where your sign is located is sold, the sign would be moved to a vacant location until that space is sold. You also advise that the unsold boards are valued at $100 per board per month during political races.
You relate that the advertising company is not itself registered as being represented before the Legislature; however, the industry does have a lobbyist. You question whether you may accept the billboard space as a gift and, if so, whether it is reportable on your gift disclosure form.
As we noted in CEO 91-14, due to the recent revisions of the gift law by the Legislature at the end of 1990, the law applicable to your question depends on when the use of the billboards was offered and when it was or is provided. Chapter 90-502, Laws of Florida, which became law on January 1, 1991, substantially revised State law regarding gifts. Section 20 of the act provides:
This act applies to all gifts, honoraria, or honorarium expenses received or paid on or after January 1, 1991, unless received pursuant to an agreement entered into prior to that date, in which event the law in effect at the time the agreement was entered into shall apply. Any report that is required with respect to a contribution given before January 1, 1991, must be made according to the requirements applicable thereto.
Under this "grandfather" provision, any gift (or "contribution," as defined under the previous law) that was received during 1990 will be treated in accordance with the law in effect prior to January 1, 1991. Similarly, a gift received after January 1, 1991, but pursuant to an agreement entered into prior to that date, will be treated in accordance with the law in effect prior to January 1, 1991. Our opinion as to the use of billboard space during 1990, as well as the use of billboard space pursuant to an agreement entered into before January 1, 1991, is set forth in CEO 91-14. Any other gifts, honoraria, or honorarium expenses received or paid on or after January 1, 1991, will be governed by the provisions of Chapter 90-502, as amended by Chapter 91-292.
Under Chapter 90-502, as amended, the use of billboard space would constitute a "gift," as it would be considered a service having an attributable value. A "gift" is defined in Chapter 90-502, as amended by section 3 of Chapter 91-292, Laws of Florida, as follows:
(a) 'Gift,' for purposes of ethics in government and financial disclosure required by law, means that which is accepted by a donee or by another on the donee's behalf, or that which is paid or given to another for or on behalf of a donee, directly, indirectly, or in trust for his benefit or by any other means, for which equal or greater consideration is not given, including:
1. Real property.
2. The use of real property.
3. Tangible or intangible personal property.
4. The use of tangible or intangible personal property.
5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.
6. Forgiveness of an indebtedness.
7. Transportation, lodging, or parking.
8. Food or beverage, other than that consumed at a single sitting or event.
9. Membership dues.
10. Entrance fees, admission fees, or tickets to events, performances, or facilities.
11. Plants, flowers, or floral arrangements.
12. Services provided by persons pursuant to a professional license or certificate.
13. Other personal services for which a fee is normally charged by the person providing the services.
14. Any other similar service or thing having an attributable value not already provided for in this section.
(b) 'Gift' does not include:
1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the recipient's employment or business.
2. Contributions or expenditures reported pursuant to chapter 106, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party.
3. An honorarium or an expense related to an honorarium event paid to a person or his spouse.
4. An award, plaque, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service.
5. An honorary membership in a service or fraternal organization presented merely as a courtesy by such organization.
6. Food or beverage consumed at a single sitting or event.
7. The use of a public facility or public property, made available by a governmental agency, for a public purpose.
(c) For the purposes of paragraph (a), 'intangible personal property' means property as defined in s. 192.001(11)(b).
The use of the billboard does not come within the Section 112.312(9)(b)1 exception to the definition of "gift." We find that that section was intended to apply to the recipient's private or personal employment or business and not to his or her public service. Nor do we find that the offer of free use of advertising space as a public service is a prohibited gift pursuant to Section 112.3148(4), which provides:
A reporting individual or procurement employee or any other person on his 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 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.
Because the advertising company is not a political committee, a committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, you may accept the gift even if it has a value in excess of $100. If its value exceeded $100 during a calendar quarter, the gift should be disclosed by the end of the following calendar quarter on Commission on Ethics Form 9, Quarterly Gift Disclosure. We also find that membership by an entity in an association generally does not make the entity the principal of a lobbyist who lobbies for the association, even though that entity's interests are being represented by the lobbyist, unless the entity exercises substantial control over the operations and the policies of the association. We caution that this may not be the result where there is such a substantial identity between the entity and the association as to make the one the alter ego of the other.
Under the new gift law, the general rules for valuing a gift are as follows:
The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. . . . Except as otherwise specified in this section, a gift shall be valued on a per occurrence basis. [Section 112.3148(7)(a) and (i), Florida Statutes, as amended by Chapter 90-502, Section 8, Laws of Florida.]
In our view, the gift you receive from the advertising company does not constitute "personal services provided by the donor," as what you receive is not simply an act done personally by an individual for your benefit. Although the company obviously provides the labor involved in putting up and taking down your sign from the billboard, you also receive the use of the billboard during the period of time when the sign is located there. We are of the opinion, however, that in order to value the gift on a per occurrence basis, each occurrence would be the period of time during which the sign was displayed at a particular billboard location. Therefore, the value of the gift should be determined based upon the actual cost to the advertising company of putting up the sign, of keeping it there for the period of time it is up, and of taking it down.
Accordingly, the donation of billboard space in 1991 and thereafter is a gift that should be reported on Form 9 for each period of time, during which the value of the use of that billboard at that particular location exceeded $100, based upon the cost to the advertising company. If the advertising company removes the sign during 1991 or thereafter and re-erects it at a new location, the use of the billboard space at the new location during 1991 and thereafter would constitute a "gift" to be disclosed on Form 9 by the end of the calendar quarter following any calendar quarter during which its value exceeded $100, based upon the cost to the advertising company.