GIFT ACCEPTANCE AND DISCLOSURE

CITY PAYING TRAVEL EXPENSES FOR COMPANIONS OF CITY OFFICIALS

SUMMARY:

For purposes of Section 112.3148, Florida Statutes, a city official has received a "gift" when the city pays travel expenses for the official's spouse or other guest to accompany the city official on a city-sponsored trip. Although the definition of "gift" in Section 112.312(12), Florida Statutes, excludes transportation provided to a public officer by an agency in relation to officially approved governmental business, paying the travel expenses of the official's spouse or other guest would be an indirect gift to the city official and would be reportable by the City official on a CE Form 9—Quarterly Gift Disclosure.

QUESTION:

Have city officials received a "gift" for purposes of Section 112.3148, Florida Statutes, when their spouse or other guest accompanies them to a foreign art exhibition and where the city pays for the travel expenses of their companion?

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

In your letter of inquiry and supplemental information provided to our staff, we are informed that, at tremendous expense and time commitment, the City has attracted a world-class art exhibit and show to Miami Beach. After extensive study of the art world, the City arranged with the organizers of "Art Basel," held annually in Basel, Switzerland, to exhibit their art show at the Miami Beach Convention Center each December. According to your letter, Swiss Art Basel is considered the most prestigious art festival in the world, and hundreds of exclusive galleries gather at the Swiss Exhibition Center each summer to exhibit and sell their art. Thousands of art collectors, art dealers, artists, curators and art lovers attend the annual meeting place of the art community, which also generates extensive media coverage. You write that when the Art Basel organizers agreed to host the event at the Miami Beach Convention Center, the idea was for the Miami Beach festival to meet the standards and tastes of Swiss art patrons as well as local purveyors of art. In making this a reality and to foster the public purpose of promoting Art Basel Miami Beach, the City established a policy of paying the travel and related expenses for members of the City Commission and the City Manager, as well as one guest for each official, to attend Swiss Art Basel. You advise that the average cost to the City for each City official is $3,071.00 and the average cost for each guest is $1,320.00, which primarily represents the guest's airfare. The City has determined that paying the travel expenses for this delegation serves a public purpose by promoting the economic development of the City of Miami Beach.

More particularly, we are advised that while in Switzerland, the City delegation participates in official protocol duties on behalf of the City, including attendance at opening ceremonies, meeting with principals, exhibitors, collectors, and members of the media. You write that "social protocol" dictates that each City official be accompanied by his or her spouse or significant other. During the exhibition, the City, in partnership with the Miami Beach Convention and Visitors Bureau, maintains an information booth at the entrance to the Swiss Exhibition Center. From that location, the delegation greets visitors, answers questions, and promotes art, culture, education, and business exchange between Miami Beach and Basel. The delegation also meets with trade and tourism representatives working in Switzerland and participates in various briefings and press conferences. These activities add significant value to the City's efforts to encourage Art Basel to continue coming to Miami Beach, you write. With this preface, you ask how the gift law—Section 112.3148, Florida Statutes—affects the payment of travel expenses for the companion of a City official.

Section 112.3148(4), Florida Statutes, prohibits a "reporting individual" from knowingly accepting a gift with a value in excess of $100 from certain donors. Section 112.3148(8), Florida Statutes, requires a reporting individual to file a quarterly gift disclosure form disclosing allowable gifts worth in excess of $100. These two provisions only apply to "reporting individuals," which Section 112.3148(2)(d), Florida Statutes, defines to mean persons who file financial disclosure. Since the spouses or guests of the City officials are not "reporting individuals," the gift law does not apply to them. However, we are of the opinion that a City official has received a reportable "gift" when his or her spouse or other guest accompanies the official to Swiss Art Basel and where the City pays for the travel expenses of the companion.

Section 112.312(12), Florida Statutes, contains the following definition of "gift:"

(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 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. . . .
10.  Entrance fees, admission fees, or tickets to events, performances, or facilities. . . .
(b)  “Gift” does not include: 7.  Transportation provided to a public officer or employee by an agency in relation to officially approved governmental business. . . . .

In a number of opinions, we have concluded that when a public official travels on official agency business paid for by his agency, he has not received a "gift" for purposes of Section 112.3148, Florida Statutes, because he has given his agency quid pro quo. See Rule 34-13.210(2), Florida Administrative Code, and CEO 01-19, CEO 92-12, and CEO 91-46. Based on this precedent, although each City official's travel is estimated to cost over $3000, we do not view the City's payment of this expense as a gift to the City official.

However, we do not believe this principle applies to the travel of a City official's spouse or guest, which averages $1320 per person. Instead, we view the spouse or guest's travel as an indirect gift to the public official and, to the extent that it exceeds $100, it must be reported on a quarterly gift disclosure form. Neither Section 112.312(12)(a)7 nor 112.312(12)(b)7, Florida Statutes, applies to the transportation provided by the City to spouses or guests because the spouses or guests are not "public officers or employees" of the City. For the same reason, the exception described in Rule 34-13.210(2), Florida Administrative Code, also does not apply since it excludes "travel or expenses incurred in the performance of public duties. . .by a public officer or employee from his or her public agency. . . ." See also CEO 92-33.

Nor do we believe that the spouse or guest provides equal or greater consideration for a trip to Europe to the City by accompanying City officials or by appearing at the Swiss Art Basel events to conform with "social protocol." Instead, we view their company as an indirect gift to the City official since it is the City official who is allowed to designate who will accompany him or her on the trip and because there is no indication that the companions have an independent relationship with the City that would otherwise motivate the City to pay for their travel. See also Rule 34-13.310(6), Florida Administrative Code, for its list of factors to be weighed in determining whether a public official has received an "indirect gift."

In CEO 91-43, we confronted the opposite situation: a state official was invited by her spouse to attend a weekend retreat held by the spouse's law firm, and a member of the firm represented clients before the state official's agency. In that situation, we concluded that the state official had not received a gift from the law firm but, instead, had received a gift from her spouse, which was not prohibited or required to be disclosed. Footnote 10 of CEO 05-5 is more on-point to this situation. There, we noted that a city official had received a reportable gift when the city paid for his or her spouse's admission to a speedway suite.

Accordingly, under the circumstances presented, we conclude that the City's payment of companion travel for City officials is an indirect and reportable gift to City officials on their quarterly gift disclosure form—CE Form 9.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 1, 2006 and RENDERED this 6th day of December, 2006.

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Norman M. Ostrau, Chair