CEO 06-11 -- June 14, 2006

GOVERNOR AND STAFF TRAVELING ON TRADE MISSION PAID FOR BY ENTERPRISE FLORIDA, INC.

To: Ms. Raquel A. Rodriguez, General Counsel, Office of the Governor (Tallahassee)

Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, would not be violated where the Governor, in his ex officio capacity as Chairman of the Board of Directors and Chief Executive Officer of Enterprise Florida, Inc., participates in a trade mission sponsored by Enterprise Florida, Inc., even though it is the principal of registered Executive Branch lobbyists. Nor would the statute be violated were EFI to pay for local transportation and attendance at networking events for the Director of the Governor's Office of Tourism, Trade, and Economic Development and members of the Governor's senior staff who are participating in the trade mission, although these expenses should be disclosed as provided in Section 112.3148(6)(a), Florida Statutes.

Would Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, be violated were the Governor, in his ex officio capacity as Chairman of the Board of Directors and Chief Executive Officer of Enterprise Florida, Inc., to participate in a trade mission sponsored by Enterprise Florida, Inc., where Enterprise Florida is the principal of registered Executive Branch lobbyists?

Under the specific factual circumstances described herein, Question 1 is answered in the negative.

You write that you seek this opinion on behalf of Governor Jeb Bush concerning the applicability of Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, to his participation in a trade mission where all his travel expenses will be paid for by Enterprise Florida, Inc. (EFI). Although EFI is the principal of lobbyists who are registered to lobby both the Executive and Legislative branches of State government, the Governor chairs ex officio its Board of Directors pursuant to Section 288.901(7), Florida Statutes, and also serves as its Chief Executive Officer according to Section 4.15 of its By-Laws.

We are advised that EFI is the entity officially charged with promoting international trade on behalf of the State. After the abolition of Florida's Department of Commerce, EFI was established as a "public/private partnership" to serve as the State's principal economic development organization. Section 288.9015(1), Florida Statutes, provides:

It shall be the responsibility of [EFI] to provide leadership for business development in Florida by aggressively establishing a unified approach to Florida's efforts of international trade and reverse investment; by aggressively marketing the state as a probusiness location for potential new investment; and by aggressively assisting in the retention and expansion of existing businesses and the creation of new businesses. In support of this effort, [EFI] may develop and implement specific programs or strategies that address the creation, expansion, and retention of Florida business; the development of import and export trade; and the recruitment of worldwide business.

You relate that Section 288.904(2), Florida Statutes, states that "the powers granted to [EFI] shall be liberally construed in order that [EFI] may aggressively pursue its purpose of being the principal economic development organization for the state." The State, through a contract between the Office of Tourism, Trade, and Economic Development (OTTED) and EFI, directly funds up to half of EFI's operating budget each fiscal year. See Section 288.90151, Florida Statutes. You also relate that EFI is a not-for-profit corporation and has been granted Section 501(c)(3) charitable status by the Internal Revenue Service. It is subject to the State's open meeting and public records laws. It has the authority to use the State seal. In the event it is dissolved, its assets revert to the State. Its Board is composed of public officers and private sector members appointed by some of the public officers. The Department of Financial Services considers EFI to be a component of State government by requiring it to adopt Governmental Accounting Standards Board (GASB) requirements rather than those used by non-government entities.

Among the strategies adopted by EFI to promote international trade and investment are "Team Florida" trade missions to foreign countries with which Florida has, or seeks to have, significant trade and investment relationships. A trade mission to the United Kingdom planned for July 2006 is intended to build on the State's $310 million investment in attracting The Scripps Research Institute to Florida and the investment's primary purpose of transforming Florida's economy to include a major biomedical science sector. You further advise that the United Kingdom is a key trading partner with Florida and is the number one foreign-affiliated generator of employment in Florida.

You also advise that EFI charges a registration fee to companies that register for its trade missions. There is no category for charging registration fees to participants who are not affiliated with a "company," such as state officials or employees. The registration fee covers EFI's expenses in organizing the mission, transporting registrants from the airports on official travel days or between mission events, and hosting some, but not all, of the networking functions, including group meals and receptions. Registrants typically pay for their own overseas travel, hotel and incidentals. Some of the registrants may include principals or lobbyists, but they are not the organizers or instigators of the mission. Companies that send more than one delegate benefit from discounted registration fees for each additional delegate.

We previously had the opportunity to consider the unique nature of EFI and its relationship with OTTED in CEO 05-16. That opinion was concerned with whether the Director of OTTED could become President of EFI without violating post-employment provisions in the Code of Ethics. Although we noted there that EFI was a "business entity" for purposes of the Code of Ethics, we also recognized that it possessed many characteristics of an agency and we ultimately applied Section 112.316, Florida Statutes, to conclude that Section 112.3185 would not be violated if the OTTED Director became EFI President. Notwithstanding CEO 05-16, the question to be answered here is whether EFI's payment of the Governor's travel in conjunction with the trade mission would be a prohibited lobbying expenditure.

Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, 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.

Section 112.3215(1)(d), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, defines "expenditure" 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 definition of "lobbies" in Section 112.3215(1)(f), Florida Statutes, includes

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 any agency official or employee.

An "agency official or employee" would include the Governor inasmuch as he is required to file full and public disclosure of his financial interests. Section 112.3215(1)(b), Florida Statutes.

On January 20, 2006, the Florida Legislature issued its Interim Lobbying Guidelines for the House and Senate. Those Guidelines considered employment-related compensation and benefits to be an exception to the expenditure prohibition. In Paragraph 1.g)2. (page 9), the Guidelines state:

Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the recipient's employment, business, or service as an officer or director of a corporation or organization are not prohibited expenditures so long as they are given in an amount commensurate with other similarly situated employees, officers, and directors.

Example: A legislator who is on the board of directors of an organization that has a lobbyist is nevertheless permitted to partake of food and beverage provided to the board members by the organization at its board meetings.

This language is similar to the exclusion from the definition of "gift" in Section 112.312(b)1., Florida Statutes.¹ Even though this language is not part of Section 112.3215, Florida Statutes, as amended by Section 2005-359, Laws of Florida, based on the specific facts presented, we approve the guidance contained in the Interim Lobbying Guidelines, and conclude that payment of the Governor's travel expenses to participate ex officio in a trade mission sponsored by Enterprise Florida, Inc., would not be an expenditure prohibited by Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida.

Moreover, we conclude that EFI's expenditures for the Governor's travel would not constitute lobbying expenditures. In our view, EFI is a quasi-public entity performing a statutorily authorized responsibility when it undertakes such a trade mission. Although it will be making a "payment" when it pays for the Governor's travel expenses on this trade mission, we conclude that, under the circumstances presented, it will not be making a prohibited expenditure, because it is not for the purpose of "lobbying." As noted above, an expenditure must be "for the purpose of lobbying" in order to be prohibited. "Lobbying" is defined to mean either seeking to influence an agency's decision or "an attempt to obtain the goodwill of any agency official or employee." Here, the Governor is acting in his official capacity as Governor, as well as in his ex officio capacity as Chairman of EFI's Board of Directors, when heading EFI's trade mission. Under these circumstances, we conclude that EFI's payment of the Governor's travel expenses is not intended to influence his official decision-making nor intended to obtain his goodwill. Nor, based on the circumstances presented here, do we find that payment of these expenses constitutes an "indirect" expenditure from any of the private entities that will be participating in the trade mission and paying registration fees to EFI.

Accordingly, we find that Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, would not be violated were the Governor, in his ex officio capacity as Chairman of the Board of Directors and Chief Executive Officer of Enterprise Florida, Inc., to participate in a trade mission sponsored by Enterprise Florida, Inc.

Would Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, be violated were EFI to pay for local transportation and attendance at networking events for the Director of the Governor's Office of Tourism, Trade, and Economic Development and members of the Governor's senior staff who are participating in the trade mission?

Under the specific factual circumstances, this question also is answered in the negative.

You also advise that the Director of OTTED, who also is a member of the EFI Board, and certain members of the Governor's senior staff (EOG), who are reporting individuals, assist the Governor and EFI in promoting and implementing economic development projects within the State of Florida. With respect to the OTTED Director and other EOG staff who assist the Governor and OTTED Director on the mission or who participate in the promotion of international trade and investment in Florida at the mission, EFI will pay for the cost of local transportation from airports and between events and for attendance at networking functions, including group meals and receptions. Participation by EOG staff on the mission is considered official travel subject to State reimbursement rules, as the participating staff members are actively assisting the Governor and OTTED Director in their functions and gaining knowledge that they can apply in their work for the EOG. The cost of attending some of the networking events is likely to exceed the State per diem allowance and would require participating staff to choose between missing the events or paying the difference from their personal funds.

In our view, EFI's payment for local travel and attendance at networking functions does not constitute an expense "for the purpose of lobbying" any more than the payment of similar expenses for the Governor. The OTTED Director and the other EOG staff who the Governor believes are necessary for the success of the trade mission will be participating in their official capacities in support of the Governor and his official responsibilities to the State and to EFI. Under these circumstances, we conclude that EFI's payment of their local travel expenses and for their attendance at networking functions is not intended to influence their official decision-making or intended to obtain their goodwill, any more than that of the Governor. Nor, based on the circumstances presented here, do we find that payment of these expenses constitutes an "indirect" expenditure from any of the private entities that will be participating in the trade mission and paying registration fees to EFI.

Under the gift law, we conclude that this question is governed by Section 112.3148(6)(a), Florida Statutes, which provides:

Notwithstanding the provisions of subsection (5), an entity of the legislative or judicial branch, a department or commission of the executive branch, a water management district created pursuant to s. 373.069, South Florida Regional Transportation Authority, the Technological Research and Development Authority, a county, a municipality, an airport authority, or a school board may give, either directly or indirectly, a gift having a value in excess of $100 to any reporting individual or procurement employee if a public purpose can be shown for the gift; and a direct-support organization specifically authorized by law to support a governmental entity may give such a gift to a reporting individual or procurement employee who is an officer or employee of such governmental entity.

Although EFI is not an entity of State government (see Sec. 288.901(1), Fla. Stat.), we believe that it is the equivalent of a direct-support organization, given its responsibilities noted above in Section 288.9015(1), Florida Statutes, to act as "the principal economic development organization" for Florida, and the other powers and duties noted in Part VII, Chapter 288, Florida Statutes. Therefore, expenses paid for by EFI for these persons should be reported, annually as provided in Section 112.3148(6)(d), on CE Form 10.

Accordingly, we find that Section 112.3215(6)(a), Florida Statutes, as amended by Chapter 2005-359, Laws of Florida, would not be violated were EFI to pay for local transportation and attendance at networking events for the Director of the Governor's Office of Tourism, Trade, and Economic Development and members of the Governor's senior staff who are participating in the trade mission, although these expenses should be disclosed as provided above.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 9, 2006 and RENDERED this 14th day of June, 2006.

^[1]The Governor's acceptance of travel expenses, lodging, meals, and other related expenses paid for by EFI would also not be a "gift" for purposes of Section 112.3148, Florida Statutes, because the statutory definition of "gift" excludes expenses associated with the donee's service as an officer or director of a corporation. See Section 112.312(12)(b)1., Florida Statutes.