CEO 91-46 -- July 19, 1991

GIFT DISCLOSURE

DISCLOSURE OF TRIPS PAID FOR BY OFFICIAL'S

OWN GOVERNMENTAL AGENCY

To: (Name withheld at the person's request.)

SUMMARY:

Under Chapter 90-502, Laws of Florida, and the 1991 amendments thereto, a public or local officer is not required to disclose trips paid for by the officer's own agency. Although there does not appear to be an express exception for expense reimbursement by a public agency to its own officers from the "gift" definition at Section 112.312(9), Florida Statutes, in virtually all cases in which a public or local officer's trip is paid for by his own agency, the quid pro quo is his travel. Whenever there is a proper public purpose associated with the public or local officer's travel, the consideration flowing to the public agency, from its initial payment of or reimbursement for the public or local officer's expenses, should be considered of equal or greater value than the expense payment or reimbursement. As such, it is by definition not a gift. However, a public or local officer who claims that the trip is not a gift is not relieved of the responsibility of determining that he is in fact giving quid pro quo, that is, that the value of his time and services are equal to or greater than the value of the trip.

QUESTION:

Under Section 112.3148, Florida Statutes, as amended by Chapter 90-502, Laws of Florida, and Section 3 of Chapter 91-292, is the reimbursement of transportation, lodging, and parking expenses in connection with travel for a proper public purpose to a public officer (as distinguished from a public employee), by the officer's public agency in a total amount in excess of $100, a "gift" for which the agency must provide a statement to the officer and the officer must file a report?

Your question is answered in the negative.

In your letter of inquiry, you advise that you have been counseling local government officials concerning the 'gift disclosure law", and specifically, you are advising that if a city pays the travel expenses (transportation, lodging, and parking) of a city commissioner in order for him to attend, for example, a Florida League of Cities convention, a legislative committee hearing, a meeting with a State or Federal official, or for any other proper public purpose, and the reimbursement exceeds $100.00 in value, the city commissioner must treat the reimbursement as a reportable gift and report it on his annual gift report. You are in doubt as to the correctness of this advice and seek our opinion.

In responding to your inquiry, you ask us to assume the following:

1. The officer is a "reporting individual".

2. The officer is not an employee of the public agency.

3. The travel and reimbursement occurred after January 1, 1991.

4. The travel is for a proper public purpose.

5. The reimbursement is not an honorarium, or expense related to an honorarium event.

In CEO's 90-72 and 90-73, we opined that trips paid for by a governmental agency, whether the public officer's agency or another, need not be reported. In reaching this conclusion, we referenced AGO 75-121 which advised that office space furnished to a legislator by a county under the authority of a special act did not have to be reported as a "contribution", on the ground that the purpose of the disclosure law--to compel disclosure of all gifts and donations which might tend to influence an elected officer--would not be served by disclosure. Applying Chapter 90-502 to these facts causes us to reach the same result in this instance.

Under Chapter 90-502, Laws of Florida, the term "gift" has been redefined to mean "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.. . ." Section 112.312(9)(a), Florida Statutes. [All citations in this part of the opinion are to the statutory sections as amended or created in Chapter 90-502, Laws of Florida, as amended by Chapter 91-292, Laws of Florida.] The term is defined specifically to include transportation and lodging and to exclude food or beverage consumed at a single sitting or event. "Gift" also specifically excludes "[s]alary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the recipient's employment or business, " as well as an "honorarium or an expense related to an honorarium event paid to a person or his spouse." Section 112.312(9)(b)1 and 3.

You correctly point out that even though there is an exception at Section 112.312(9)(b)1 pertaining to expenses associated with the recipient's employment from the "gift" definition, there does not appear to be an express exception for expense reimbursement by a public agency to its own officers from the "gift" definition. Therefore, by applying the rule of statutory construction, expressio unis est exclusio alterius [exceptions made in a statute give rise to a strong inference that no other exceptions were intended], one might conclude that because of the absence of an exception for expense reimbursement to public officers who are not employees, such expense reimbursement is a reportable "gift", if the value exceeds $100.00, even if the officer is an officer of the donor agency. However, we find that the examples of trips that you have described in your letter of inquiry are not "gifts" when the trip is being paid for by the public officer's own agency.

As discussed above, Chapter 90-502 redefined "gift" to mean "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 . . . for which equal or greater consideration is not given.. . ." [Emphasis supplied.] Thus, when a public officer travels in connection with the performance of his or her public duties, or there is otherwise a proper public purpose for the travel, consideration flows to the public agency. The quid pro quo for the public officer's travel is his agency's reimbursement of him for the travel. As you correctly recognized in your letter of inquiry:

a. The consideration flowing to the agency may be of direct value to the agency, such as information gained by the officer which will enable the agency to comply with State or Federal law, or defeat a proposed bill that, in the opinion of the agency, would be detrimental to the agency and to the public if enacted; or

b. The consideration flowing to the agency may be of direct value to the agency in the sense that the agency has selected one of it officers to meet with some other agency to fulfill a requirement or a desire to engage in "intergovernmental coordination" and, the travel expenses are necessarily incurred by the office as a result; or

c. The consideration flowing to the agency may be of indirect value in the sense that anything that the officer learns will enable him to carry out the duties of his office more effectively.

We believe that whenever there is a proper public purpose associated with the public or local officer's travel, the consideration flowing to the public agency from its initial payment of or reimbursement, for the public or local officer's expenses should be considered of equal or greater value than the expense payment or reimbursement so as to exempt such reimbursement from the definition of "gift". However, nothing in this opinion relieves the public or local officer who claims that the trip is not a gift from the responsibility of adequately determining that he is in fact giving quid pro quo, that is, that the value of his time and services should be equal to or greater than the value of the trip. Some of the factors that he should consider in making this determination are expense of trip, location and length of meeting, importance of issues to be discussed in relation to his duties, and the purpose to be served by the trip. This opinion is consistent with what we perceive to be the intent of the legislature in enacting the gift reporting law as stated above. It must be understood also that this opinion is limited to the expenses associated with trips which are paid for or reimbursed by his or her governmental agency. As to any other trip paid for by non-governmental entities, our opinion, as stated in CEO 91-4, applies. Note should also be taken that the amendments to Chapter 90-502, by Chapter 91-292, do not affect our opinion.

Your inquiry is answered accordingly.