CEO 01-13 -- July 31, 2001

 

GIFT ACCEPTANCE AND DISCLOSURE

 

PUBLIC SERVICE COMMISSION EMPLOYEE OFFERED TRAVEL EXPENSES FOR INTERVIEW WITH PROSPECTIVE EMPLOYER, A UTILITY COMPANY

 

To:       Name withheld at person's request (Tallahassee)

 

SUMMARY:

 

A reporting individual has not received a "gift" for purposes of Section 112.3148, Florida Statutes, when a prospective employer invites him to interview for a position with the company and offers to pay and/or reimburse him for his travel expenses.  Interviewing with a prospective employer is consideration for the receipt of those travel expenses and would not constitute a "gift."  However, the reporting individual bears the responsibility for substantiating the receipt of reasonable expenses under this type of situation.

 

QUESTION:

 

Are travel expenses provided to a reporting individual by a prospective employer a "gift" for purposes of Section 112.3148, Florida Statutes, where the reporting individual applied for employment with the company and the company invited him to an interview and offered to pay for his travel expenses?

 

Under the circumstances presented, your question is answered in the negative.

 

In your letter of inquiry and in a conversation with our staff, we are advised that you are employed by the Public Service Commission in the Division of Regulatory Oversight and are required to file financial disclosure on our CE Form 1.[1]  You write that as required by PSC policy, you informed the Executive Director that you had applied for employment with an electric utility regulated by the Public Service Commission and you subsequently were invited to interview with the company in its Tampa office.  The company offered to furnish you with an airplane ticket and a hotel room and reimburse you for a rental car and your meals while on the overnight interview trip.  However, you decided not to accept their offer and postponed interviewing with the company until you could seek our guidance about the applicability of the gift law to this situation.

Section 112.312(12), Florida Statutes, provides:

 

'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 the donee's benefit or by any other means, for which equal or greater consideration is not given within 90 days, including:

. . .

7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking.

8. Food or beverage.

. . .

(b) "Gift" does not include:

1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the donee's employment, business, or service as an officer or director of a corporation or organization.

 

Section 112.3148(4), Florida Statutes, prohibits you, as a reporting individual, from accepting a "gift" with a value in excess of $100 from a lobbyist who lobbies your agency, or from the partner, firm, employer, or principal of a lobbyist.  You have said that the entity which invited you to interview is a utility company regulated by the Public Service Commission, one which presumably employed or retained someone to influence the decisionmaking of the PSC within the preceding twelve months.  Thus, the utility company would be prohibited from giving you a "gift" with a value in excess of $100.  The question, then, is whether the payment of travel expenses by a prospective employer is a "gift."

The statutory definition of "gift" includes the concept of "quid pro quo" and, in several opinions involving the gift law, we concluded that the recipient had provided equal or greater consideration such that they had not received a gift.  In CEO 91-45, the Commission opined that a mayor had provided equal or greater consideration to a golf tournament sponsor which allowed her to accept tournament passes and trinkets from the sponsor and not treat them as gifts for purposes of Section 112.3148, Florida Statutes.  That opinion noted that the effort provided by the mayor was provided in her private capacity and that

 

the concept of quid pro quo would never be applicable to a situation where the public officer used her official position to render official services on behalf of her public agency.

 

That same opinion also concluded that the receipt of travel expenses from the League of Cities was not a gift since the mayor provided equal or greater consideration to the League as a director when she attended its board meetings.

In CEO 91-57, we opined that disclosure should be the goal whenever a reporting individual received one of the items listed in the definition of "gift."  There, a legislator traveled to various venues for conferences and trade missions, and we concluded that his travel was reportable as a "gift."  In that opinion, we said that

 

in the absence of clear evidence to the contrary, we are going to assume when we are rendering opinions on gifts that the reporting individual has not given 'equal or greater consideration' in exchange for the gift. We adopt this view because of our reluctance to issue opinions valuing the reporting individual's services, which is extremely difficult to do in the context of an advisory opinion, as well as our belief that the public is better served by disclosure of the receipt of gifts by reporting individuals.

 

However, in CEO 95-21 we opined that the stipend a state senator received for serving on the board of directors of an insurance company was not a "gift" since the other directors received the same remuneration.  It was, instead, "equal or greater consideration" for his service on the board.  That opinion referenced our Rule 34-13.210(3), Florida Administrative Code, which provides:

 

Substantiation of equal or greater consideration having been given is the responsibility of the donee.  In substantiating or justifying whether equal or greater consideration has been given by the donee to the donor, the donee should be able to provide information demonstrating the following factors:

(a) Where the donee has provided items of merchandise, supplies, raw materials, or finished goods to the donor, the fair market value of the goods shall constitute consideration.

(b) Where the donee has performed individual labor or effort for the benefit of the donor as consideration, the donee should be able to demonstrate:

1. The length of time it took to provide the service;

2. The value of the service provided, if ascertainable, which is reasonable and customarily charged in the community; and

3. Whether persons performing similar services for the benefit of the donor received a comparable gift from the donor.

 

While none of the factors in the rule we promulgated clearly contemplates the situation here (travel expenses paid to a prospective employee), there is nothing particularly unique about the provision of travel expenses to a prospective employee as it is a fairly common practice among large companies in the private sector and is viewed as a necessary expense among companies who recruit and employ workers in a competitive marketplace.  Therefore, in our view, a reporting individual who incurs travel expenses when traveling to interview for a position with a prospective employer may accept the payment/reimbursement of those expenses by the prospective employer as consideration for submitting to the interview process and being considered for employment.  However, the responsibility remains with the reporting individual to substantiate the receipt of travel expenses/reimbursement as reasonable and appropriate under the circumstances.

This opinion does not address issues involving post-employment restrictions. We would encourage you to seek additional guidance about those provisions and their applicability to your situation should you leave your position with the Public Service Commission.

Your question is answered accordingly.

 

ORDERED  by the State of Florida Commission on Ethics meeting in public session on July 26, 2001 and RENDERED this 31st day of July, 2001.

 

 

__________________________

Howard Marks

Chair


[1]Most Public Service Commission employees file financial disclosure as "specified state employees" pursuant to Section 112.3145(1)(b)6., Florida Statutes (legislative branch).