CONFLICT OF INTEREST AND GIFT ACCEPTANCE AND REPORTING

CITY COMMISSIONER APPEARING AT EVENTS AND IN MEDIA PLATFORMS

To: Name withheld at person's request (Tamarac)

SUMMARY:

A city commissioner would not have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, were he to retain a public relations firm to identify, create, and engage "meet and greet" events and other media platforms to gain exposure, where the public relations firm is not doing business with, or regulated by, the city commission. To the extent the commissioner has paid the firm the full and fair market value for the services provided, they would not constitute a "gift" under Section 112.3148, Florida Statutes. CEO 08-29, CEO 08-2, CEO 05-11 and CEO 91-45 are referenced.¹

QUESTION 1:

Would a prohibited conflict of interest exist were you to retain a public relations firm to identify, create, and engage "meet and greet" events and media platforms through which you may gain exposure in the community?

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

In your letter of inquiry and supplemental information provided to staff, you relate that you are a city commissioner, and you plan to retain a public relations and/or marketing firm (the "Firm"), at your own expense and at fair market price, to assist you with community outreach. You state that the Firm is owned by an individual who serves with you on the board of directors of a non-profit organization, and that the Firm is not doing business with the city nor is it regulated by the city or the city commission. You further relate that you anticipate having the Firm set up "meet and greet" events giving you a forum to communicate with members of the public throughout the community. The "meet and greet" events may include breakfasts, luncheons, galas, networking events, seminars, expos, festivals, fun days, sporting events, summits, and other events and mediums. You also anticipate that the Firm will create other platforms through which you can gain exposure, including mobile applications, printed materials, podcasts, social media posts, door hangers, promotional videos, newsletters, and all media advertising. You advise that the Firm may engage businesses in the community to sponsor some of the events and platforms. Finally, you relate that your participation on some of these platforms may be at no cost to you, where you are invited by the Firm and the same opportunities are opened up to other elected officials.

You inquire whether any provisions of the Code of Ethics would prohibit your engaging the Firm for these purposes, and under these circumstances. Section 112.313(7)(a), Florida Statutes, is relevant to your inquiry. It provides:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee. . .; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties.

The first part of this provision prohibits you from having an employment or contractual relationship with any business entity regulated by or doing business with your agency. As the Firm is not doing business with the city and is not regulated by the city or the city commission, this part of the statute does not apply to your situation.

The second part of Section 112.313(7)(a) prohibits you from having any contractual relationship which will create a continuing or frequently recurring conflict between your private interests and the performance of your public duties or which would impede the full and faithful discharge of your public duties. A "conflict" or a "conflict of interest" is defined by Section 112.312(8), Florida Statutes, as "a situation in which regard for a private interest tends to lead to disregard of a public duty or interest." In order for the second part of Section 112.313(7)(a) to apply, there must be an adequate intersection between the private interests of the public officer and the functions, duties, or subject matter of his public agency. Nothing in the information you have provided—including the fact that the Firm's owner serves with you on the board of a nonprofit—suggests this or any other conflicting dynamic. Therefore, the second part of the statute does not apply to your situation.

Accordingly, we find that hiring the Firm to assist you with community outreach, including setting up "meet and greet" events and other media advertising, will not create a prohibited conflict of interest under Section 112.313(7)(a).

Question 1 is answered accordingly.

QUESTION 2:

Would services provided you by the Firm constitute a gift to you under Section 112.3148, Florida Statutes, where you have engaged the Firm to promote you and to assist you with gaining exposure in the community, and have paid fair market value for the services provided by the firm?

Your question is answered as follows.

Section 112.312(12)(a), Florida Statutes, which defines "gift" for purposes of Section 112.3148, Florida Statutes, states:

"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:

1. Real property.

2. The use of real property.

3. Tangible or intangible personal property.

4. The use of tangible or intangible personal property.

5. 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.

6. Forgiveness of an indebtedness.

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.

9. Membership dues.

10. Entrance fees, admission fees, or tickets to events, performances, or facilities.

11. Plants, flowers, or floral arrangements.

12. Services provided by persons pursuant to a professional license or certificate.

13. Other personal services for which a fee is normally charged by the person providing the services.

14. Any other similar service or thing having an attributable value not already provided for in this section.

In your letter of inquiry, you relate that you will be paying full market value for most of the "meet and greet" events you will attend, and for the media advertising services that you will receive from the Firm. The statute provides that when a recipient has provided equal or greater consideration for an item, the receipt of the item does not constitute a gift. See also CEO 91-45, in which we opined that passes and tickets to a golf tournament from the tournament sponsor did not constitute gifts to a mayor who had provided equal or greater consideration.

To the extent you provide full and fair market value to the Firm for the "meet and greet" events, media services, and other platforms, they do not constitute a "gift" as defined in Section 112.312(12)(a), and, therefore, are not prohibited or required to be reported pursuant to Section 112.3148, Florida Statutes.

Your materials also indicate you may be invited by the Firm to attend events at no cost to yourself where other elected officials are also invited to participate, and that at this time it is not clear who will pay for these events, or whether you and the other elected officials attending will be asked to share in the cost of producing these events. In addition, you state you believe that the Firm may engage businesses in the community to sponsor some events, but you are unsure as to the specifics of such sponsorships.

These scenarios could implicate the gift laws in Section 112.3148, particularly as we have opined that free publicity may be a gift. See, CEO 08-29, CEO 08-2, and CEO 05-11. In addition, Section 112.3148(4), Florida Statutes, prohibits you from accepting "directly or indirectly" a gift worth more than $100 from certain donors.

Without more factual detail, we cannot render an opinion as to whether events or platforms funded or sponsored, in whole or in part by others, may be a gift, and, if so, whether such gift may be prohibited or required to be reported. We can only recommend that prior to accepting anything for which you have not given equal or greater consideration, you review the statute and Rule 34-13.310(8)(c), Florida Administrative Code, which sets forth the various factors used to determine whether an "indirect gift" has been made. We invite your further inquiry, as necessary, when additional facts become available.

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 20, 2017, and RENDERED this 25th day of October, 2017.

____________________________________

Michelle Anchors, Chair

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).