CEO 08-29 – December 10, 2008

GIFT ACCEPTANCE AND REPORTING

CITY COMMISSIONER APPEARING IN PUBLIC SERVICE ANNOUNCEMENTS

To: Jerry Libbin, Commissioner, City of Miami Beach

SUMMARY:

Appearances by a city commissioner in public service announcements promoting an anti-littering campaign would constitute a "gift" under Section 112.3148, Florida Statutes. Whether a gift valued at over $100 would be prohibited would depend on whether the donor was a principal of a lobbyist. A gift not prohibited but valued at over $100 would be reportable by the commissioner. CEO 05-11 and CEO 08-2 are referenced.1


QUESTION:

Would your appearance in public service announcements promoting a beach anti-littering campaign constitute a prohibited gift to you under Section 112.3148, Florida Statutes, where the announcements are paid for by local hotels and shown by a local movie theatre company?


Your question is answered in the affirmative if a hotel or the theatre company is a principal of a lobbyist and if the value of the gift exceeds $100. If a donor is not the principal of a lobbyist, your question is answered in the negative; however, if the value of the non-prohibited gift exceeds $100, it must be reported by you.


By your letter of inquiry, we are advised that you serve as a City Commissioner for the City of Miami Beach. Further, we are advised that you have been working over the past several months, in your capacity as a Commissioner, to raise the awareness of the community, its tourists, and City employees about the impacts of littering, having been especially outspoken about protecting sensitive marine life and protecting public beaches, which you describe as the community's most precious natural resource. Continuing, you advise that the community's beaches drive its economy but that, over time, beach users have developed a cavalier attitude about placing trash in proper receptacles because, as you maintain, nobody called attention to the issue. Further, you advise that you now have raised the issue in several public meetings, have held a series of meetings in the community to discuss your strategies for making people more aware that it is illegal to litter and to educate people on the harmful effects of littering, and have organized other related events.2


Additionally, you advise that you approached a local movie theatre company (theatre), inquiring if it would provide the City with a free public service announcement (PSA), to be shown before each movie, embodying a 30-second message about keeping the community's beaches free from litter. Continuing, you advise that the theatre said it would not donate the screen space, instead offering you a generous price, and that you then decided to pay for the announcements personally (using your money, not public funds), for one month, at a cost of $190 per week, personally appearing in the announcements (since the announcements would be paid for by you), communicating the "No Littering" message. Advising us further, you state that recently, after deciding on the personal payment scenario, you spoke at an event at a local hotel, where the hotel's manager thanked you for taking the lead on the anti-littering issue and where you, in response, told him of your plans for personally-paid announcements. In response to this information, you advise, the manager endorsed your idea of announcements, asked about the $190 per week cost,3 and offered to contact all of the general managers of the local major hotels to ask if each hotel would pay for announcements for one month (feeling certain all would want to participate), and stating that he felt it was essential for you to personally appear in the announcements because "[you] had the credibility on [the] issue." Also, by telephone, you advised our staff that the $190 rate only covers the theatre's airings or airtime of the announcements (on its movie screens and on its big screen plasma televisions in its lobbies) and that it does not cover the production costs of making the announcements. Further, you advised our staff that the theatre has production capabilities and quoted you a cost of $500 to produce the spot but that you decided to use a commercial production company outside the theatre.4 And you advised our staff that the concept is to have the announcements run for the number of months that there are hotels willing to sponsor (e.g., 6 months-6 hotels, 8 months-8 hotels, 12 months-12 hotels).


Thus, you inquire whether you can appear in the announcements, if they are paid for by the hotels (payment being made directly to the advertising agency for the theatre, not through you).


In CEO 05-11, 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,5 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 $100.6 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. See also CEO 08-2 (Question 1), in which we, in reliance on CEO 05-11, determined that the Attorney General's receipt of free exposure and publicity via appearing in public service announcements promoting a Florida conference for women would constitute a gift to the Attorney General, reasoning that while the announcements would be for a public purpose or worthy cause (promotion/opportunity/recognition regarding Florida women), they clearly would be made for an official serving as spokesperson 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 of an anti-littering campaign), they clearly will be made for an official (you) serving as spokesperson as well.


Having found that you will receive a gift, whether in 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 individuals7 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 donors, under the facts you describe, we find that the hotels would be donors of free publicity and exposure to you.8 Notwithstanding that the hotels' payments for the announcements would not be made directly to you but, rather, would be made to the advertising agency for the theatre, the circumstances of your inquiry indicate that their payments would be targeted to you and the particular announcements, with no ability of the advertising agency or the theatre to determine whether you or others would appear in them. Thus, we find that your situation is distinguishable from that of CEO 08-2 (regarding the Attorney General), in which we found that the nonprofit corporation sponsoring the women's conference was the donor and that companies (who were principals of lobbyists) which provided moneys to the nonprofit were not indirect donors of free publicity and exposure to the Attorney General.


Accordingly, under the facts presented, we find that you will have received a gift from the hotels in the amounts they pay for the announcements and that you will have received a gift from the theatre and a gift from the outside production company,9 to the extent the theatre's rate or the production company's rate is below its customary rate and is not a "similarly available" rate, in the amount of the difference between the customary rate and the special rate to you. Also, we find that the gift will be prohibited10 if its value exceeds $100 and if the donor (a hotel, the theatre, or the production company) is a principal of a lobbyist.11


As a paramount point, you advise that if any of the entities (hotels, theatre, production company) are principals of lobbyists, they will not contribute to the announcements and entities from among them that are not principals of lobbyists will bear the costs, "making up the difference."


ORDERED by the State of Florida Commission on Ethics meeting in public session on December 5, 2008 and RENDERED this 10th day of December, 2008.


____________________________________

Cheryl Forchilli, Chair

[1] To access prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us

[2]You advise that recently you organized a "Litter Awareness Walk," which had over forty volunteers marching on the beach and on the streets of South Beach for about ninety minutes, holding signs that read "No Litter No Butts," an event which was very well received by tourists and residents alike; that in follow-up to the walk, you organized two weekends for volunteers to meet and greet beach-goers at the major public access points to the community's more popular beaches; and that volunteers will be handing out biodegradable litter bags to sunbathers as they enter the beaches and asking them to please be respectful of the community's beaches and to clean up after themselves at the end of the day.

[3]In addition, via a telephone conversation between you, an attorney of the City Attorney's Office, and our staff you advised that the $190 rate negotiated by the theatre was "worked up" for you, but that you got the feeling from your contact with the theatre that the $190 rate would have been offered by the theatre to any person similar to yourself (i.e., a government or nonprofit organization person seeking public service announcements).

[4]You advise that the outside production company did not quote you a dollar price for producing the spot but instead offered to produce it (the 30-second announcement) in exchange for its being able to have its name (credit) in the spot for approximately 2 seconds, something that you believe it normally does not do rather than charging money for its services, but that you believe that its dollar amount charge for production would be similar to that offered by the theatre.

[5]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.


[6]We do not find Section 112.3148(3), Florida Statutes, which prohibits a reporting individual (e.g., a city commissioner) from soliciting a gift, regardless of value, from a lobbyist or a principal of a lobbyist, to be at issue under the facts of your inquiry. While you advise that you approached the theatre regarding whether it would provide free announcements to the City, your personally appearing in the announcements only later became a component of them in concert with your deciding to pay for them personally after the theatre refused gratuitous provision. Thus, while the theatre's rate (price) quoted to you may be a gift under Section 112.312(12)(a)5, Florida Statutes, it appears that the rate was offered or negotiated by the theatre, rather than being solicited by you. Section 112.312(12)(a)5 defines a gift to include

[a] preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex, or national origin.


[7]As an official required to file financial disclosure under Section 112.3145, Florida Statutes, you are a "reporting individual." Section 112.3148(2)(d), Florida Statutes.

[8]Whether the theatre also would be a donor to you depends on whether the rate (price) the theatre is willing to provide your announcements for is below its customary rate and is not either a government rate or similar rate available to those similarly situated, as specified in Section 112.312(12)(a)5, Florida Statutes. Similarly, whether the outside production company also would be a donor to you depends on an analysis under Section 112.312(12)(a)5.

[9]However, we find that you will not have received a gift from the production company at all if the hotels pay the company its customary rate or if the company receives a short exposure in the announcement that it normally does not receive in announcements produced by it. We find that such exposure would constitute equal or greater consideration to the company.

[10] You write that you are checking to make sure that none of the hotels is a principal of a lobbyist under Section 112.3148(2)(b), Florida Statutes, both as to your City lobbyist registration requirements and via checking with various City personnel to ascertain whether persons have actually lobbied for the hotels currently or within the past twelve months. We urge your confirmation in this regard to the theatre and the outside production company as well.

[11] If a donor is not the principal of a lobbyist, you may appear in the announcements, but you must report the gift quarterly, on CE Form 9, if its value exceeds $100. Section 112.3148(8), Florida Statutes. Regarding how to report the value of the announcements from a hotel, under the situation you present, the value would be $190 multiplied by the number of weeks the hotel paid for [e.g., $760 for 4 weeks ("1 month")], if the hotel paid once in the aggregate; if the hotel paid separately for each week, there would be separate gifts from the hotel, each valued at $190 and each requiring separate disclosures on Form 9. See Section 112.3148(7)(i) requiring valuation of gifts, per quarter, on a "per occurrence basis." However, if all of the hotels pool and deliver at once all of the money necessary for the totality of the announcements, you would have to file but one Form 9, identifying each hotel and their respective contributions to the pool on the Form. Rule 34-13.510(1), F.A.C. Assuming the theatre's rate is a gift under Section 112.312(12)(a)5, its value is the difference between the theatre's customary rate and the special rate, for all announcements run combined. CEO 05-11 and CEO 08-2 (note 7). If the hotels also pay the production costs to the outside production company, pro rata, the figures above could be adjusted slightly upward, as to reporting gifts from the hotels. If the hotels pay the production company its regular rate, there is no gift to you from the production company (and thus nothing for you to report from the production company). If the production company charges you its normal rate but you allow its appearance in approximately two seconds of the 30-second spot, there is no gift to you from the company, its exposure in the spot amounting to equal or greater consideration, assuming it normally does not get such exposure in spots it produces. If the production company's rate is a gift under Section 112.312(12)(a)5 and assuming that it does not receive the approximately two seconds of exposure for itself in the spot, its value is the difference between the company's customary rate and the special rate.