EXECUTIVE BRANCH LOBBYING

PROMOTIONAL ITEMS GIVEN AWAY BY INSURANCE PROVIDER
TO STATE EMPLOYEES ATTENDING BENEFIT FAIRS

SUMMARY:

Section 112.3125(6)(a), Florida Statutes, prohibits lobbyists and principals from making, and those Executive Branch agency officials and employees who file financial disclosure from accepting, any expenditures made for the purpose of lobbying. Where the definition of lobbying includes not only seeking to influence an agency in the area of policy or procurement but also, an attempt to obtain the goodwill of an agency official or employee, companies who are principals of Executive Branch lobbyists may not give promotional items to Executive Branch agency officials and employees who file financial disclosure if they attend benefit fairs held during open enrollment by the Department of Management Services.

QUESTION:

Would the restriction against expenditures by Executive Branch principals be violated where an insurance company that provides pretax insurance benefits but is the principal of Executive Branch lobbyists distributes promotional items to State employees attending benefit fairs sponsored by the Department of Management Services?

Your question is answered in the affirmative for Executive Branch agency officials and employees who file financial disclosure.

This opinion is sought on behalf of a provider of pretax insurance benefits offered to State employees, Capital Insurance Agency, Inc. We are advised that the provider is also listed as a principal of lobbyists who lobby the Executive Branch. You ask whether the provider may offer attendees at the benefit fairs sponsored by the Department of Management Services (DMS) during open enrollment inexpensive promotional items like pens, pencils, notepads, band-aid kits, eye glass cleaning kits, tooth brushes, drinking cups, mints, gum, coffee, tea, popcorn, cookies, key chains, etc. You relate that the inexpensive trinkets are given out regardless of whether an employee has enrolled in a pretax program and that they have no bearing on the employee's choice of insurance products. You suggest that the importance of attending benefit fairs is underscored by a DMS policy that allows State employees to attend without requiring them to use annual leave. Whether your company can continue to provide these promotional items to State employees without violating the law against lobbying expenditures is the question before us.

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. . . . .

We have promulgated a rule on engendering "goodwill." Rule 34-12.180(1), Florida Administrative Code, provides:

Activities by a lobbyist which do not involve directly attempting to influence a specific decision of an agency in the area of policy or procurement may nonetheless be considered "lobbying" pursuant to Section 112.3125, Florida Statutes, and this Rule Chapter, where an expenditure is made by a lobbyist or principal for the personal benefit of an agency official or employee. Such expenditures will be considered to have been for the purpose of engendering goodwill, unless the agency official or employee is a relative of the lobbyist or principal paying for the expenditure.

Based on the statutory language cited above as well as our rule interpreting the term "goodwill," we are of the view that the provider may not make expenditures of even nominal value for the personal benefit of Executive Branch agency officials and employees who file financial disclosure. We acknowledge that this result may seem harsh, but we are obligated to give full force and effect to the language adopted by the Legislature. The Legislature could have included a de minimis exclusion in the statute when it provided for other exclusions, but it did not. A maxim of statutory construction, expressio unius est exclusio alterius (the expression of one thing is the exclusion of another), further supports this reasoning.

Moreover, noting that there is a similar restriction for legislators and legislative employees in Section 11.045, Florida Statutes, there is nothing in the Interim Lobbying Guidelines for the House and Senate issued by the Speaker of the House and Senate President on January 20, 2006, that construes an exemption for items of insignificant value. The Guidelines, at page 4, defines "goodwill expenditure" to mean "a gift, an entertainment, any food or beverage, lodging, travel, or any other item or service of personal benefit to a legislator or legislative employee."

Based on the foregoing, we do not believe that a provider of pretax insurance benefits who has lobbyists registered to represent it before the Executive Branch should distribute promotional items at DMS benefit fairs to Executive Branch agency employees who file financial disclosure. While this category of employees certainly may attend the benefit fairs and obtain informational hand-outs and brochures concerning benefits that are available to them as State employees¹, they should not be given, nor should they accept, any "expenditures" including (but not limited to): pens, pencils, notepads, band-aid kits, eye glass cleaning kits, tooth brushes, drinking cups, mints, gum, coffee, tea, popcorn, cookies, and key chains. Executive Branch agency employees who do not file financial disclosure, as well as public employees who are employed by agencies outside of the Executive Branch² , are not subject to this restriction.

Accordingly, we find that a provider of pretax insurance products who participates in the DMS benefit fairs and who is the principal of Executive Branch agency lobbyists is prohibited by Section 112.3125(6)(a), Florida Statutes, from giving promotional items to Executive Branch agency officials and employees who file financial disclosure.

ORDERED by the State of Florida Commission on Ethics meeting in public session on September 8th, 2006 and RENDERED this 13th day of September, 2006.

______________________________
Norm M. Ostrau, Chairman

¹Informational handouts and brochures would not be given for the purpose of lobbying in this context, as they are not directed at influencing an agency's decisionmaking – as opposed to the employee in his or her private capacity – and are not given to obtain the employee's goodwill.
²As noted previously, Section 11.045, Florida Statutes, contains a similar restriction for legislators and legislative employees but is not within our jurisdiction to construe.