CEO 96-21 -- August 29, 1996

GIFT ACCEPTANCE

COMPLIMENTARY USE OF VACATION VILLAS AND USED FURNITURE

OWNED BY EMPLOYER OF MEMBER OF TOURIST DEVELOPMENT

COUNCIL, WHO APPEARED BEFORE COUNCIL, GIVEN TO

NEWLY HIRED EXECUTIVE DIRECTOR OF COUNTY

CONVENTION AND VISITORS BUREAU DURING

HIS RELOCATION TO THE COUNTY

To: (Name withheld at the person=s request.)

SUMMARY:

Although the complimentary use of vacation villas for 56 days during the relocation to the county from another state of the county=s newly hired convention and visitors bureau executive director was valued at over $100 (See Section 112.3148(7)(a), Florida Statutes), it was not given by a lobbyist or principal of a lobbyist of the Convention and Visitors Bureau, the Executive Director=s agency. Therefore, under Section 112.3148(4), Florida Statutes, the gift was not prohibited. Furthermore, even if it were given by a lobbyist, Section 112.3148(4) also requires that the gift be Aknowingly@ accepted from a lobbyist. Under the circumstances presented, the executive director, not knowing about the company=s proposal to the tourist development council, did not knowingly accept a gift valued at over $100 from a lobbyist or principal of a lobbyist. Therefore, the gift would not have been prohibited.

If the value of the gifts exceeded $100, the executive director was required to report them on his CE Form 9 on the last day of the calendar quarter following the quarter during which he received the gift.

QUESTION:

Were prohibited gifts under Section 112.3148, Florida Statutes, received by the Executive Director of the County=s Convention and Visitors Bureau when he accepted complimentary use of vacation villas and used furniture from the villas offered by a County Tourist Development Council member who also is an employee of a company that appeared before the Council six months prior to the Executive Director's commencing his employment with the county in order to promote a specific project for which it was seeking tourist development tax fund revenues?

Your question is answered in the negative.

In your letter of inquiry, attachments to your letter, and conversation with our staff, you advise that the County engaged in a national search to fill the position of Executive Director of the Kissimmee-St. Cloud Convention and Visitors Bureau (ABureau@). As a result, you advise, an individual from another state was recruited by the County and offered the position. You also advise that during the recruitment process, candidates for the position were provided complimentary accommodations at Westgate Vacation Villas (AWestgate@). The offer of the complimentary accommodations was accepted by the Council at a public meeting of the Tourist Development Council=s Selection Committee of which the offerer was a member. Consequently, when the Executive Director was interviewed by the County Commission, the County was provided a complimentary room at Westgate for his and his wife=s use, you advise.

The Osceola County Tourist Development Council (ATDC@) is an advisory board to the County Commission. Its creation is required by Section 125.0104(4), Florida Statutes, as part of the procedure for the County=s levying a tourist development tax. Section 125.0104(4)(e) requires that the Council to be made up of nine (9) members: the Chair of the County Commission or any other member designated by the Chair; two elected municipal officials; three owners or operators of motels, hotels, recreational vehicle parks, or other tourist accommodations in the County subject to the tax; and three persons involved in the tourist industry who have demonstrated an interest in tourist development but who are not owners or operators of motels, hotels, recreational vehicle parks or other tourist accommodations in the County subject to the tax. The Council is required to prepare and submit to the County Commission for its approval a plan for tourist development in the County. Among the items that are required to be set forth in the plan are the anticipated net tourist development tax revenues to be derived by the County for the 24 months following levy of the tax and a list of proposed uses of the tax revenue by specific projects or specific uses. The County Commission then is required to adopt the plan as part of the ordinance levying the tax. See Section 125.0104(4)(d), Florida Statutes.

The TDC also is required to meet at least once each calendar quarter and, from time to time, to make recommendations to the County Commission relative to the effective operation of the special projects or uses of the tourist development tax revenues and to perform such other duties as are prescribed by County ordinance or resolution. See Section 125.0104(4)(e), Florida Statutes. The TDC also is required to continuously review the County=s expenditure of revenues from the Tourist Development Trust Fund and receive, at least quarterly, expenditure reports from the County Commission or its designee. Among the expenditures for which the County is authorized to use tourist development tax revenue are funding of convention bureaus (such as the Kissimmee-St. Cloud Convention and Visitors Bureau) as county agencies and promotion and advertising of tourism in the State, nationally and internationally. See Section 125.0104(5)(a), Florida Statutes.

We are advised that the Selection Committee, a separate committee of the TDC, was established by the TDC to aid the County in the recruitment and selection process for the Executive Director of the Bureau. The TDC member who offered the complimentary use of the vacation villas and the used furniture to the Bureau=s Executive Director also, we have been informed, was employed as a consultant with the company which owns, among other properties, Westgate.

You further advise that when the Executive Director was offered the position, the County allocated $6,000 toward his relocation expenses. He arrived in the County on April 15, 1995 and began employment on April 17, 1995, you advise. Initially, he stayed at a local hotel and paid for his accommodations with his credit card. He later accepted, with the approval of the then County Manager, an offer made by the Tourist Development Council member for complimentary accommodations at Westgate, you advise. You advise that the County's Risk Management and Personnel office and the Chairperson of the TDC also were aware of these arrangements.

You advise that the Executive Director stayed at Westgate for a period of 56 days, during which time he was asked to move from room to room due to the business needs. He subsequently made arrangements to lease a vacant apartment owned by the then County Manager, which he moved into with used furniture loaned to him at no charge by Westgate. We are advised that the former County Manager created a renewable monthly lease and charged the Executive Director his actual monthly payment. The Executive Director also understood that this arrangement was approved by a number of County Commissioners. From there, you advise, he moved into a larger rental house and has since purchased a home in the County.

You advise that the Executive Director submitted receipts totaling $7,873.67, of which the County, pursuant to its agreement with the Executive Director, paid $6,000. None of the $7,873.67, you advise, was paid to Westgate.

In February 1996, you advise, the Tourist Development Council discussed an issue involving the company which owned Westgate and the company's owner. You advise that the Council rejected the proposal for which the company was seeking funding approval. You also advise that, up until that time, there were no Tourist Development Council agenda items involving the company, the Council member who also is employed by the company, or Westgate and involving the Convention and Visitors Bureau=s Executive Director. However, in a telephone conversation with our staff you related that on October 20, 1994, approximately six months before the Executive Director=s employment with the County commenced, the company received preliminary authorization from the TDC for its Florida Vacation Store concept. As a result, on November 7, 1994, the company opened a booth in the Mall of the Americas in Minneapolis to begin its marketing of the County, you advise. You advise further that in August 1995, the company sought to expand its marketing efforts into other states. However, the TDC=s Marketing Committee finally rejected the company=s proposal on February 20,1996. The Executive Director, you advise, was not involved in the Council=s Marketing Committee=s decision. You also advise that you have not been presented with any evidence indicating that the Executive Director of the Convention and Visitors Bureau supported, opposed, or lobbied the issue on behalf of the company. Moreover, the Executive Director is not a voting member of the Tourist Development Council or its Marketing Committee. Furthermore, you advise that the Executive Director has indicated that there were no obligations sought or implied by Westgate, by the Council member and company employee, or by the owner of the company which has Westgate among its property holdings in exchange for the complimentary accommodations.

Finally, you advise that the Executive Director=s name was added to our Financial Disclosure Notification list on February 27, 1996. Because of recent local media attention brought to these facts, you are seeking our opinion whether any of the circumstances presented gives rise to possible violations of the Code of Ethics for Public Officers and Employees.

The Code of Ethics for Public Officers and Employees provides in relevant part as follows:

SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby. [Section 112.313(2), Florida Statutes.]

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his or her spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his or her official capacity. [Section 112.313(4), Florida Statutes.]

MISUSE OF PUBLIC POSITION.--No public officer or employee of an agency shall corruptly use or attempt to use his or her official position or any property or resource which may be within his or her trust, or perform his or her official duties, to secure a special privilege, benefit, or exemption for himself, herself, or others. This section shall not be construed to conflict with s. 104.31. [Section 112.313(6), Florida Statutes.]

For purposes of this provision, the term "corruptly" is defined as follows:

'Corruptly' means done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties. [Section 112.312(9), Florida Statutes.]

REPORTING AND PROHIBITED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS AND BY PROCUREMENT EMPLOYEES.--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.]

REPORTING AND PROHIBITED RECEIPT OF GIFTS BY INDIVIDUALS FILING FULL OR LIMITED PUBLIC DISCLOSURE OF FINANCIAL INTERESTS AND BY PROCUREMENT EMPLOYEES.--

(a) Each reporting individual or procurement employee shall file a statement with the Secretary of State on 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, except the following:

1. Gifts from relatives.

2. Gifts prohibited by subsection (4) or s. 112.313(4).

3. Gifts otherwise required to be disclosed by this section.

(b) The statement shall include:

1. A description of the gift, the monetary value of the gift, and the dates thereof. If any of these facts, other than the gift description, are unknown or not applicable, the report shall so state.

2. A copy of any receipt for such gift provided to the reporting individual or procurement employee by the donor.

(c) The statement may include an explanation of any differences between the reporting individual's or procurement employee's statement and the receipt provided by the donor.

(d) The reporting individual's or procurement employee's statement shall be sworn to by such person as being a true, accurate, and total listing of all such gifts.

(e) If a reporting individual or procurement employee has not received any gifts described in paragraph (a) during a calendar quarter, he or she is not required to file a statement under this subsection for that calendar quarter.

[Section 112.3148(8)(a), Florida Statutes.]

We will focus here on the events occurring after the Executive Director became a County employee on April 17, 1995. Prior to that date, he was not a public employee. Accordingly, the prohibitions of the Code of Ethics would not have applied to prohibit his acceptance of the complimentary accommodations during the period of time that he was being interviewed and recruited by the County, even if a public officer or employee would have been prohibited from accepting the accommodations.

Section 112.313(2), Florida Statutes, prohibits a public officer, employee, or candidate for nomination or election from soliciting or accepting a gift or any other thing of value based on an understanding that his or her actions as a public officer or employee would be influenced thereby. Because there is no indication that the Executive Director=s acceptance of the complimentary accommodations and complimentary use of the used furniture from Westgate and/or the company=s owner or the Council member/company employee was based on an understanding that his actions as Executive Director of the Convention and Visitors Bureau would be influenced thereby, we find that the Executive Director does not appear to have violated Section 112.313(2).

Section 112.313(4), Florida Statutes, also prohibits the Executive Director, as a public employee, from accepting compensation, payment, or a thing of value if he knew or should have known that it was given to influence his official actions, as the Executive Director of the Convention and Visitors Bureau. Because, under the circumstances presented, there is no indication that the Executive Director accepted the complimentary accommodations and complimentary use of the used furniture when he knew or should have known that they were given to influence his official actions, it does not appear that the Executive Director violated Section 112.313(4) here either.

In order to allege a violation of Section 112.313(6), the facts must indicate that the Executive Director used or attempted to use his position as Executive Director of the Convention and Visitors Bureau or the resources within his trust to secure a special privilege or benefit, where his actions were taken with wrongful intent for the purpose of obtaining a benefit for himself or another and were inconsistent with the proper performance of his public duties. Here, not only do you indicate that the Council rejected the company=s proposed business offer, but you indicate that you have not been presented with any evidence that the Executive Director either supported, opposed, or lobbied the issue on behalf of the company.

In previous opinions, we have observed that Section 112.313(6) requires a determination of intent which is extremely difficult to make within the context of an advisory opinion since intent is determined from an examination of all relevant circumstances. We are able to make a determination of intent when a complaint is filed. However, in issuing an advisory opinion, we are hindered by a lack of access to information concerning all the circumstances of the situation as well as to information concerning the credibility of the individuals involved. See CEO 92-19, CEO 91-28, and CEO 82-82. Therefore, while we are unable to make a final determination as to whether the Executive Director violated Section 112.313(6), under the circumstances presented it does not appear that he did.

Finally, Section 112.3148(4), set forth above, prohibits a reporting individual or procurement employee from accepting a gift valued in excess of $100 from a lobbyist or a principal or employer of a lobbyist, unless it is accepted on behalf of a governmental entity or charitable organization. The first question then is whether the Council member/company employee and the company=s owner are considered "lobbyist[s]" or Aprincipal[s] of a lobbyist.@ For purposes of this provision, the term Alobbyist@ is defined to mean

any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decision making 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. [Section 112.3148(2)(b), Florida Statutes.]

Although you have indicated that up until February 1996 there were no TDC agenda items involving the company, the TDC member/company employee, or Westgate, in which agenda items the Executive Director also was a party, you have advised that approximately six months prior to the Executive Director=s assuming his position with the Convention and Visitors Bureau, the company was seeking the TDC=s approval and authorization for its Florida Vacation Store concept. We also note that the TDC, as an advisory board to the Board of County Commissioners, establishes policy for the Convention and Visitors Bureau and reviews its expenditure of funds. The Bureau is a separate County agency funded at least in part by tourist development tax revenues. Therefore, even if we assume that the TDC member who is employed as a consultant to the company is a Alobbyist@ of TDC and the company is a Aprincipal of a lobbyist@ of TDC, because we have no indication that the member lobbied the Convention and Visitors Bureau, the Executive Director=s agency, the TDC member is not a lobbyist and the company is not a principal of a lobbyist for purposes of the application of the Section 112.3148(4) prohibition to the Executive Director. Consequently, the Executive Director was not prohibited from accepting the offer of complimentary accommodations from the TDC member or the company.

Moreover, even if the TDC member were a lobbyist and the company were a principal of a lobbyist of his agency, because the Executive Director was neither aware of the company=s employee=s/Tourist Development Council member=s role relative to the project for which it sought authorization for tax revenue funding from the Council or about the project itself when he accepted the offer to stay at the vacation villas, no prohibited gift was given because it was not Aknowingly@ accepted from a lobbyist or principal of a lobbyist.

The term "reporting individual" is defined to mean

any individual who is required by law, pursuant to s. 8, Art. II of the State Constitution or s. 112.3145, to file full or limited public disclosure of his financial interests. [Section 112.3148(2)(d), Florida Statutes.]

Because you have indicated that the Executive Director was added to our financial disclosure notification system list on February 27, 1996, for purposes of this analysis we will assume that he is a Areporting individual.@ Therefore, in addition to being prohibited by Section 112.3148(4) from accepting a gift valued at over $100 from a lobbyist or principal of a lobbyist of his agency, he also was required to disclose any gift received by him that was valued at over $100 and not received from a relative, not prohibited under Sections 112.3148(4) and 112.313(4), and not otherwise required to be disclosed under other provisions of Section 112.3148. The disclosure should have been made on the last day of the calendar quarter following the quarter in which he received the gift, using CE Form 9, Quarterly Gift Disclosure.

The term "gift," as used in this section, is defined at Section 112.312(12) as follows:

(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 his benefit or by any other means, for which equal or greater consideration is not given, including:

1. Real property.

2. The use of real property.

3. Tangible or intangible personal property.

4. The use of tangible or intangible personal property.

* * * *

7. Transportation, lodging, or parking.

We find that the Executive Director=s use of Westgate facilities and furniture were gifts under this definition. We also find that if the gifts were valued at over $100, which we reasonably assume is the case with respect at least to the Executive Director=s complimentary use of the Westgate villas, since he stayed there for 56 days, he was required to disclose it as a gift. Lodging provided on consecutive days is considered a single gift. Although Westgate villas do not appear to be private residences, lodging in a private residence is valued at the per diem rate provided in Section 112.061(6)(a)1, Florida Statutes, less the meal allowance rate provided in Section 112.061(6)(b). See Section 112.3148(7)(e), Florida Statutes. Therefore, the value of the Executive Director=s complimentary stay at Westgate was at least $1,624 ($29/day x 56 days). If, however, the value of the Executive Director=s use of the used furniture, a separate gift, was less than $100, then he was not required to disclose it. The value of his complimentary use of the used furniture is determined using the actual cost to the donor. See Section 112.3148(7)(a), Florida Statutes, and Fla. Admin. Code Rule 34-13.500 (1) which provides that Aactual cost to the donor@ means

the price paid by the donor which enabled the donor to provide the gift to the donee. Where the donor engages in the business of selling the item or service, other than personal services that is provided as a gift, the donor=s Aactual cost@ includes the total costs associated with providing the items or services divided by the number of units of goods or services produced.

Because we do not have sufficient information to determine what the value of the Executive Director=s complimentary use of the furniture was, we are unable to determine whether the Executive Director was required to report it as a gift on his CE Form 9.

Accordingly, we find that the Executive Director=s complimentary use of Westgate provided to him by a Council member and company employee on behalf of either the company or the owner of the company was a Agift@ with a value in excess of $100 that should have been disclosed. Because the complimentary accommodations were not provided by a lobbyist or principal of a lobbyist of the County=s Convention and Visitors Bureau, the Executive Director=s agency, he was not prohibited by Section 112.3148(4), Florida Statutes, from accepting the gift.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.

___________________________________

Mary Alice Phelan

Chair