GIFT ACCEPTANCE AND REPORTING;
EXECUTIVE BRANCH LOBBYIST EXPENDITURES
ATTORNEY GENERAL APPEARING IN
PUBLIC SERVICE ANNOUNCEMENTS
To: Bill McCollum, Attorney General, State of Florida
SUMMARY:
Under the particular circumstances presented and limited to the facts of this opinion only, appearances by the Attorney General in public service announcements promoting a Florida conference for women would not constitute a prohibited gift under Section 112.3148, Florida Statutes, or a prohibited expenditure under Section 112.3215, Florida Statutes. While the appearances are a "gift," the donor is a nonprofit corporation putting on the conference; the appearances are not an indirect gift from the principals of lobbyists. And while the Attorney General ultimately receives a benefit (in the form of free publicity in the announcements) from the expenditure of sponsor money made by principals of executive branch lobbyists to the nonprofit, the facts do not indicate that the sponsorship moneys were provided by the corporate sponsors with the intent to obtain the goodwill of the Attorney General. CEO 05-11 is distinguished.
QUESTION 1:
Would your appearance in public service announcements promoting a Statewide conference for women constitute a prohibited gift to you under Section 112.3148, Florida Statutes, where the expenses associated with the announcements are paid for by a nonprofit corporation with conference sponsorship moneys obtained from companies who have lobbyists who lobby both the executive and legislative branches of Florida government?
Under the particular circumstances presented and limited to the facts of this opinion only, your question is answered in the negative.
By your letter of inquiry, we are advised that the Florida Commission on the Status of Women (FCSW) has been approached by a for-profit communications firm1 about hosting a Statewide conference for women.2 Further, you advise that FCSW is administratively housed in the Office of the Attorney General, that the Governor, the Speaker of the House of Representatives, the President of the Senate, and the Attorney General each appoint four members of FCSW, and that the Chief Financial Officer and the Commissioner of Agriculture each appoint three members. Continuing, you advise that FCSW studies and makes recommendations to the Governor, Cabinet, and Legislature on issues affecting women, and that FCSW's mission is empowering women in achieving their fullest potential, eliminating barriers to that achievement, and recognizing accomplishments of women. You state that a women's conference designed for professional and personal development would fit together with FCSW's mission.
In addition, you advise that in recent years a number of states have hosted statewide conferences for women, that the conferences are designed for education, professional development, and networking opportunities, and that the communications firm has established nonprofit, 501(c)(3) corporations specifically for each host state's conference. More particularly, you advise that a board of directors is created, and that fundraising for the conference is through corporate sponsorships, exhibitor fees, and registration fees, with corporate sponsors typically including corporations which have lobbyists who lobby both the executive and legislative branches in the participating states. The communications firm and the 501(c)(3) corporations plan, execute, and manage the conference, including handling all of the fundraising efforts. All of the money is used to pay the overhead costs of the conference, with no public official receiving any compensation for his or her participation in a conference or efforts to publicize it.3
Further, you state that involvement of Florida public officers in a Statewide conference and in related publicity efforts promotes an important public policy of the State, given the importance of women to the income of households, annual earnings of women, business ownership by women, and related issues, and given that a Florida conference for women would give thousands of Florida women access to a tremendous range of resources in education, professional development, and networking that would dovetail with the statutory mission of FCSW.
Therefore, considering that the financing and logistics of a Florida conference would mirror that outlined above, including your appearing in television or print public service announcements promoting the conference (paid for, at least in part, by sponsorship funds from companies who are principals of lobbyists of Florida executive branch agencies and the Florida Legislature), you inquire as to the gifts law and lobbyists expenditure law implications if any.
In CEO 05-11, cited in your inquiry, we determined that an invitation to members of the Legislature or other public officers or employees to appear in public service announcements promoting the Lifeline and Link-Up programs would constitute a gift from BellSouth Telecommunications and the Office of Public Counsel, and thus could not, under Section 112.3148(4)&(5), Florida Statutes,4 be extended to officials who were lobbied, or whose agencies were lobbied, by BellSouth, if the cost of production and airtime of the announcements amounted to more than $100. In the opinion, we found that an official's receipt of the free exposure, via appearance in the public service announcements, constituted a "gift" to the official within the meaning of the law, reasoning that while the advertising was clearly "on behalf of" the public programs or public purpose (there, Lifeline and Link-Up telephone programs for low-income persons/DCF clients), it clearly was made available "on behalf of" the officials serving as spokespersons as well. Likewise, we are persuaded that the situation described in your inquiry would constitute a gift to you, via the free exposure and publicity you will receive, in that while the announcements will be for a public purpose or worthy cause (promotion/opportunity/recognition regarding Florida women), they clearly will be made for an official serving as spokesperson as well.
Having found that you will receive a gift, whether it can be accepted and whether it must be reported is a function of two things: the identity of the donor and the value of the gift. Reporting individuals are prohibited from accepting any gift worth more than $100 from a lobbyist or a principal of a lobbyist who lobbies them or their agency; gifts not prohibited, other than gifts from relatives, must be reported.
As to identity of the donor, assuming that neither the communications firm that would be spearheading a Florida conference nor its 501(c)(3) nonprofit corporation established specifically for a Florida conference is the principal of a lobbyist,5 the issue is whether the free publicity/exposure you will receive is an indirect gift from sponsors of the conference who admittedly are principals of lobbyists, because your inquiry does not indicate that the sponsors are providing any publicity/exposure (or money for the publicity/exposure) directly to you. To aid us in the determination of whether something is an "indirect gift," we have promulgated Rule 34-13.310(6), Florida Administrative Code, which contains a number of nonexclusive factors relevant to the issue.
In evaluating your inquiry in light of the factors, we find that neither the sponsor moneys provided for the conference by companies who are principals of lobbyists, nor the exposure/publicity for you purchased therewith, would constitute an indirect gift from the companies. More particularly, factor (i) of the Rule concerns the existence or nonexistence of communications by the donor indicating the donor's intent to make or convey the gift to the reporting individual rather than to the intervening third person: your inquiry does not indicate that the companies have communicated to the 501(c)(3) nonprofit that they intend for their sponsor moneys or the conference publicity obtained through its use be targeted to you rather than to the nonprofit; instead, your inquiry indicates that the sponsor moneys are given to the nonprofit to host and publicize the conference under planning, execution, and management determined by the nonprofit or the communications company which formed it. Also, factor (iv) of the Rule concerns whether the same or similar gifts have been or are being provided to other persons having the same relationship to the donor as the third person: your inquiry indicates that other persons [501(c)(3) nonprofits carrying on conferences in other states] have been or are being provided sponsor moneys by corporations who lobby the executive and legislative branches in the other states. Additionally, factor (v) concerns whether, under the circumstances, the third person had full and independent decision-making authority to determine whether the reporting individual or another would receive the gift: although your inquiry indicates that it is anticipated that you, as Attorney General, and other officials will support a Florida conference by appearing in print or television public service announcements, nothing in your inquiry indicates that the nonprofit, the legal entity formed to have the responsibility to carry out the conference, will not have full and independent decision-making authority to determine who will appear in the announcements. Further, factor (vi) concerns whether the third person will be acting with the knowledge or consent of, or under the direction of, the donor: while, under the facts of your inquiry, the corporations who provide sponsor moneys to the nonprofit likely know that officials, yourself included, will be in the announcements, your facts indicate that the moneys are provided for the nonprofit to spend and administer without the need for consent from a sponsor for use of the money for announcements featuring public officers, rather than other conference-related expenses; and your inquiry does not indicate that a sponsor directs the conference work of the nonprofit. Factor (vii) concerns reimbursement of the third person by the donor: your inquiry does not indicate specific earmarking of particular funds from the sponsors to the nonprofit related to the costs of the announcements in which you would appear; rather, it indicates a general, upfront, pooling of moneys for the nonprofit's conference and conference-related expenses. Factor (viii) concerns the degree of ownership or control the donor has over the third person: under your inquiry, there is no indication that a sponsor owns an interest in the nonprofit or has any degree of control over the nonprofit.6
Accordingly, under the particular circumstances presented and limited to the facts of this opinion only, we find that you will not have received a prohibited7 gift under Section 112.3148, Florida Statutes, if you appear in television and print public service announcements for a Florida conference for women.
QUESTION 2:
Would the announcements or the sponsor moneys constitute prohibited "expenditures" under Section 112.3215, Florida Statutes?
Under the particular circumstances presented and limited to the facts of this opinion only, this question also is answered in the negative.
Subsequent to the enactment of the gifts law contained in Section 112.3148, Florida Statutes, and subsequent to our issuance of CEO 05-11, the Legislature prohibited certain "expenditures" by executive branch lobbyists and their principals to reporting individuals.8 Relevant portions of the new statute provide:
112.3215 Lobbying before the executive branch or the Constitution Revision Commission; registration and reporting; investigation by commission.-
(1) For the purposes of this section:
(a) “Agency” means the Governor, Governor and Cabinet, or any department, division, bureau, board, commission, or authority of the executive branch. In addition, “agency” shall mean the Constitution Revision Commission as provided by s. 2, Art. XI of the State Constitution.
(b) “Agency official” or “employee” means any individual who is required by law to file full or limited public disclosure of his or her financial interests.
(d) “Expenditure” means 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, any other contribution or expenditure made by or to a political party, 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).
(f) “Lobbies” 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. “Lobbies” also means influencing or attempting to influence, on behalf of another, the Constitution Revision Commission’s action or nonaction through oral or written communication or an attempt to obtain the goodwill of a member or employee of the Constitution Revision Commission.
(g) “Lobbying firm” means a business entity, including an individual contract lobbyist, that receives or becomes entitled to receive any compensation for the purpose of lobbying, where any partner, owner, officer, or employee of the business entity is a lobbyist.
(h) “Lobbyist” means a person who is employed and receives payment, or who contracts for economic consideration, for the purpose of lobbying, or a person who is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of that other person or governmental entity . . . .
(i) “Principal” means the person, firm, corporation, or other entity which has employed or retained a lobbyist.
(6)(a) 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.
Given the facts of your inquiry, which include sponsor moneys provided to the nonprofit for a Florida conference for women by corporations which are principals of lobbyists of Florida's executive branch of State government and your appearance in the related public service announcements, a situation not indicative of a direct expenditure from a principal of a lobbyist to a reporting individual, our focus is whether the moneys and appearances constitute indirect expenditures, the making and accepting of which also are prohibited by Section 112.3215(6)(a), Florida Statutes.
We find that they do not constitute indirect expenditures. Our rule on indirect expenditures, Rule 34-12.190, Florida Administrative Code, mirrors our rule on indirect gifts set forth in Question 1 above. Thus, the Rule, when applied to the facts of your inquiry, works the same result.
This question too is answered accordingly, under the particular circumstances presented and limited to the facts of this opinion only.9
Your inquiry also addresses the application of these laws to other elected officials who would appear in the public service announcements. Standing to request an opinion is limited by Section 112.322(3), Florida Statutes, so we are unable to opine how the laws apply to other officials in the context of your opinion request, other than to note that, to the extent the material facts are the same, the same conclusions would follow for other officials.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 2008 and RENDERED this 30th day of January, 2008.
____________________________________
Albert P. Massey, III, Chairman
[1]Public Strategies, Inc.
[2]You advise that the communications firm is not a "lobbying firm" as defined in Section 112.3215(1)(g), Florida Statutes, and that none of its employees is registered to lobby State of Florida executive branch agencies or the Florida Legislature.
[3] Your inquiry cites examples of conferences, participation in them by government officials, and related dynamics, from Pennsylvania, Massachusetts, and Texas.
[4]Statutes provide:
"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 . . . . [Section 112.312(12)(a), Florida Statutes.]
1. "Lobbyist" means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his or her agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his or her agency.
2. With respect to an agency that has established by rule, ordinance, or law a registration process for persons seeking to influence decisionmaking or to encourage the passage, defeat, or modification of any proposal or recommendation by such agency or an employee or official of the agency, the term “lobbyist” includes only a person who is required to be registered as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered as a lobbyist in accordance with such rule, ordinance, or law. At a minimum, such a registration system must require the registration of, or must designate, persons as “lobbyists” who engage in the same activities as require registration to lobby the Legislature pursuant to s. 11.045. [Section 112.3148(2)(b), Florida Statutes.]
A reporting individual or procurement employee or any other person on his or her behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual’s or procurement employee’s agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he or she knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift. [Section 112.3148(4), Florida Statutes.]
(a) A political committee or a committee of continuous existence, as defined in s. 106.011; a lobbyist who lobbies a reporting individual’s or procurement employee’s agency; the partner, firm, employer, or principal of a lobbyist; or another on behalf of the lobbyist or partner, firm, principal, or employer of the lobbyist is prohibited from giving, either directly or indirectly, a gift that has a value in excess of $100 to the reporting individual or procurement employee or any other person on his or her behalf; however, such person may give a gift having a value in excess of $100 to a reporting individual or procurement employee if the gift is intended to be transferred to a governmental entity or a charitable organization.
(b) However, a person who is regulated by this subsection, who is not regulated by subsection (6), and who makes, or directs another to make, an individual gift having a value in excess of $25, but not in excess of $100, other than a gift which the donor knows will be accepted on behalf of a governmental entity or charitable organization, must file a report on the last day of each calendar quarter, for the previous calendar quarter in which a reportable gift is made. The report shall be filed with the Commission on Ethics, except with respect to gifts to reporting individuals of the legislative branch, in which case the report shall be filed with the Division of Legislative Information Services in the Office of Legislative Services. The report must contain a description of each gift, the monetary value thereof, the name and address of the person making such gift, the name and address of the recipient of the gift, and the date such gift is given. In addition, when a gift is made which requires the filing of a report under this subsection, the donor must notify the intended recipient at the time the gift is made that the donor, or another on his or her behalf, will report the gift under this subsection. Under this paragraph, a gift need not be reported by more than one person or entity. [Section 112.3148(5), Florida Statutes.]
The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift. [Section 112.3148(7)(a), Florida Statutes.]
Each reporting individual or procurement employee shall file a statement with the Commission on Ethics not later than the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts which he or she believes to be in excess of $100 in value, if any, accepted by him or her, for which compensation was not provided by the donee to the donor within 90 days of receipt of the gift to reduce the value to $100 or less . . . . [Section 112.3148(8)(a), Florida Statutes.]
[5]For purposes of the gifts law contained in Section 112.3148, Florida Statutes, the term "lobbyist" encompasses more persons than does the term for purposes of the executive branch lobbyist law contained in Section 112.3215, Florida Statutes.
[6]The Indirect Gifts rule provides in full:
34-13.310 Prohibitions Against Accepting and Giving Gifts.
(6) Indirect Gifts.
(a) Where a gift is provided to a person other than the reporting individual or procurement employee by a political committee or committee of continuous existence as defined in the campaign financing laws (Chapter 106, F.S.), by a lobbyist who lobbies the agency of the reporting individual or procurement employee, or by the partner, firm, employer, or principal of a lobbyist, where the gift or the benefit of the gift ultimately is received by the reporting individual or procurement employee, and where the gift is provided with the intent to benefit the reporting individual or procurement employee, such gift will be considered an indirect gift to the reporting individual or procurement employee.
(b) Where a gift or the benefit of a gift is provided to a reporting individual or procurement employee by someone other than a political committee or committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, but the gift or the expense of the gift has been provided by or paid for by a political committee or committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, who intends thereby to benefit the reporting individual or employee, such gift will be considered an indirect gift to the reporting individual or procurement employee.
(c) Factors which the Commission will consider in determining whether an indirect gift has been made include but are not limited to:
(i) The existence or nonexistence of communications by the donor indicating the donor's intent to make or convey the gift to the reporting individual or procurement employee rather than to the intervening third person;
(ii) The existence or nonexistence of any relationship between the donor and the third person, independent of the relationship between the donor and the reporting individual or procurement employee, that would motivate a gift to the third person;
(iii) The existence or nonexistence of any relationship between the third person and the reporting individual or procurement employee that would motivate the gift.
(iv) Whether the same or similar gifts have been or are being provided to other persons having the same relationship to the donor as the third person;
(v) Whether, under the circumstances, the third person had full and independent decision-making authority to determine whether the reporting individual or procurement employee, or another, would receive the gift;
(vi) Whether the third person was acting with the knowledge or consent of, or under the direction of, the donor;
(vii) Whether there were or were intended any payments or bookkeeping transactions between the third person and the donor, reimbursing the third person for the gift; and
(viii) The degree of ownership or control the donor has over the third person.
(d) The provisions of this subsection may be illustrated by the following examples:
EXAMPLE 1: A law firm which lobbies the agency of Reporting Individual C ("C") invites all of its attorneys to attend a weekend retreat. The attorneys are encouraged to bring their spouses or significant others at the firm's expense. C is married to an attorney in the firm and has been asked by her spouse to attend the retreat. The lodging provided to C for the retreat would be considered a gift to C from her spouse and thus not prohibited, because the firm's invitation was extended to C's spouse by virtue of his employment with the firm.
EXAMPLE 2: Reporting Individual D ("D") hosts a fox hunt attended by other reporting individuals. Lobbyists who lobby the agency of D give money to a third person, who is not a reporting individual, to pay for the food and beverages which will be served at the fox hunt. D orders and prepares the food and beverages. The money provided to the third person by the lobbyists would be a gift to D, because it was given with the intent of benefiting D and his guests at the fox hunt.
EXAMPLE 3: A principal which employs 10 lobbyists who lobby the agency of Reporting Individual M ("M") channels a gift costing $1,000 to M through its 10 lobbyists. Although each lobbyist's share of the gift is $100, the gift would be prohibited because it is an indirect gift from the principal with a value of excess of $100.
EXAMPLE 4: Reporting Individual N ("N") and N's spouse have arranged to take a vacation trip together. A lobbyist who lobbies N's agency meets with the spouse and offers to pay for the spouse's travel expenses, which would exceed $100. The lobbyist and N's spouse know each other only through the lobbyist's involvement with N. This would constitute an indirect gift to N, and would be prohibited because its value exceeds $100.
[7]However, if the value of the announcements is more than $100, the official must report it as a gift on CE Form 9. In determining the value, production costs for all of the announcements and the costs to air them should be added together, then the total should be divided by the number of persons appearing (see CEO 05-11). But gifts from a donor who is not the principal of a lobbyist do not have to be reported by the donor on CE Form 30.
[8]See Chapter 2005-359, Laws of Florida. The Legislature also prohibited certain expenditures to its members, prohibitions which the Legislature, not this Commission, has the authority to interpret and apply.
[9]Unlike the situation in Question 1 regarding the gifts law, there is no reporting requirement for you or other reporting individuals flowing from the executive branch lobbyist expenditure law.