EXECUTIVE BRANCH LOBBYING

DISCOUNTED CELLULAR TELEPHONE SERVICE OFFERED TO DEPARTMENT OF REVENUE EMPLOYEES BY COMPANY WHOSE LOBBYISTS ARE REGISTERED TO LOBBY THE EXECUTIVE BRANCH

SUMMARY:

Under the specific circumstances presented, Section 112.3125(6)(a), Florida Statutes, does not prohibit Executive Branch agency officials and employees who file financial disclosure from receiving discounted phone service from a cellular telephone company that is the principal of lobbyists who lobby the Executive Branch. The definition of "expenditure" in Section 112.3125(1)(d), Florida Statutes, does not include discounted rates made in the ordinary course of business to such a large group as all government employees.

QUESTION:

Would the prohibition against accepting any expenditure be violated were a "reporting individual" with the Department of Revenue to accept the offer of discounted cellular telephone services, where the cellular telephone company that is the principal of Executive Branch lobbyists offers the same discounted service to all government employees?

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

As General Counsel for the Florida Department of Revenue, you seek this opinion on behalf of your agency's employees. You explain that a cellular telephone company which is the principal of Executive Branch lobbyists sent a flyer to some of the Department's offices, offering a 15% discount off its regular prices for government employees. The discount offer was not directed to just Department of Revenue employees, we are advised, but is available to all government employees, nationwide. You ask whether the Department's employees who file financial disclosure may accept the offer of discounted rates without violating the law prohibiting the acceptance of lobbying expenditures in Section 112.3125(6)(a), Florida Statutes.

Section 112.3125(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 112.3125(1)(d), Florida Statutes, as amended by Chapters 2005-359 and 2006-275, 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. The term 'expenditure' does not include contributions or expenditures reported pursuant to chapter 106 or federal election law, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure made by an organization that is exempt from taxation under 26 U.S.C. s. 527 or s. 501(c)(4).

The definition of "lobbies" in Section 112.3125(1)(f), Florida Statutes, means

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 an agency official or employee. . . . .

Although discounted cellular telephone service is, indisputably, a thing of value, we do not believe that under the facts presented here it was offered with either an intent to influence an agency decision in the area of policy or procurement or in an attempt to obtain the goodwill of an agency official or employee. In the situation before us, we are dealing with discounted cellular telephone service offered by a cellular provider in the ordinary course of business to all government employees nationwide without regard for whether the customer is a Department of Revenue employee who files financial disclosure. Although we would view the situation differently if the discount were communicated to only a select group of reporting individuals or if a reporting individual was singled out to receive a special discount that was not available to anyone else, such was not the case here.

Accordingly, we find that agency officials and employees of the Department of Revenue may accept the offer of discounted cellular telephone service without violating Section 112.3125(6)(a), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 20, 2006 and RENDERED this 25th day of October, 2006.

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Norm M. Ostrau, Chairman