GIFT ACCEPTANCE AND DISCLOSURE

MAYOR'S TRAVEL EXPENSES UNDERWRITTEN BY OTHER ENTITIES

To:       Cindy A. Laquidara, General Counsel, Consolidated City of Jacksonville

SUMMARY:

A mayor's travel to conferences and events paid for by others would not be considered "gifts to the city." Consistent with the legislative intent of Sections 112.3148 and 112.3149, Florida Statutes, and the Commission's precedent, the mayor's travel constituted gifts to him personally. Only where a public official's travel is paid for by his own agency, and where his agency then receives reimbursement from a third party would the reimbursement received by the agency be considered a "gift to the agency." Funds received by the city from third parties and deposited into a public fund which are then used to pay for official travel by city officials could also be considered a "gift to the agency." CEO 91-21, CEO 91-37, CEO 91-57, CEO 92-12, CEO 98-8, and CEO 07-3 are cited.

QUESTION 1:

Would expenses of the Mayor's travel to conferences and events paid directly by others be considered gifts to the City, or gifts or honorarium event-related expenses given to him personally?

Under the circumstances presented, the Mayor's travel was a gift or honorarium event-related expenses given to him personally and subject to the acceptance and disclosure provisions in Sections 112.3148 and 112.3149, Florida Statutes.

Through your letter of inquiry and additional correspondence with our staff, we are advised that as the General Counsel for the Consolidated City of Jacksonville, you seek this opinion on behalf of Jacksonville Mayor Alvin Brown. You ask whether contributions of trips and expenses for the Mayor to travel on behalf of the City, paid either directly to him or on his behalf, constitute gifts to him personally for purposes of the "gift" law (Section 112.3148, Florida Statutes), or the "honoraria" law (Section 112.3149, Florida Statutes).

You explain that since his election, the Mayor has had the opportunity to travel out of town on a number of occasions, advocating for the City and marketing Jacksonville as a destination. Some of these trips also involved speaking opportunities. In many instances, the expenses for these trips were underwritten by private individuals or entities, but instead of treating the trips as gifts to the Mayor or, when he was invited to speak, as the receipt of honorarium-event related expenses by him, they were considered to be "gifts to the City." In this way, you explain, his travel costs did not have a negative impact on the City's budget but, instead, blended public and private resources for the betterment of the City. You question whether this approach comports with Sections 112.3148 and 112.3149, Florida Statutes. We do not believe that it does.

Section 112.3148(4), Florida Statutes, provides:

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.

The definition of "gift" in Section 112.312(12), Florida Statutes, includes

Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking.

Section 112.3149(6), Florida Statutes, provides in pertinent part:

A reporting individual or procurement employee who receives payment or provision of expenses related to any honorarium event from a person who is prohibited by subsection (4) from paying an honorarium to a reporting individual or procurement employee shall publicly disclose on an annual statement the name, address, and affiliation of the person paying or providing the expenses; the amount of the honorarium expenses; the date of the honorarium event; a description of the expenses paid or provided on each day of the honorarium event; and the total value of the expenses provided to the reporting individual or procurement employee in connection with the honorarium event. The annual statement of honorarium expenses shall be filed by July 1 of each year for those expenses received during the previous calendar year. . . . .

Since the gift law was first enacted in 1990, we have never concluded that a public officer had not received a gift when he traveled at the expense of someone other than his agency. In CEO 91-57, we were confronted with a situation where a state senator traveled to Europe to participate in a NATO conference and to Brazil as part of a trade mission, and in both cases, we concluded that he had received a reportable gift. Although there was no question that a public purpose was served through his travel in both cases, we articulated our view that disclosure should be the goal for every reporting individual who received any of the items listed in the statutory definition of "gift," and that this approach was in accord with the legislative intent articulated through the enactment of Chapter 90-502, Laws of Florida.

Concerning gifts to agencies, this precise issue was litigated in a series of complaints involving officials from Bay County who traveled at the expense of a corrections company to view some of their jail facilities. In In re Jonathan A. Mantay, Complaint No. 03-081, COE Final Order No. 06-315 (2006), we found:

8. To summarize and to clarify our view of the gift law in this area, when an individual is transported or provided lodging and it is paid for or provided by another, so long as that individual did not provide equal or greater consideration to the payor or provider for that transportation or lodging, the individual received a "gift" as that term is defined in Section 112.312(12), unless the circumstances are specifically excluded by a paragraph within Section 112.312(12). To the extent that our opinion CEO 91-71, which concerned legal services, would imply otherwise, that opinion is revoked.

9. We find this view of the law more reasonable than that proposed by the ALJ, because it does not require that any legal fictions be created, such as a hypothetical 2003 "transfer" to the County of transportation that was provided to the Respondent in 2000 or an [sic] "simultaneous" transfer of lodging provided to the Respondent when the hotel bill was paid. Nor does it require that the employee's agency be considered to have received "lodging" or "transportation," when an agency cannot be transported or lodged.

10. This view of the law also is more consistent with opinions, rendered by the House General Counsel during the first year after the law was enacted, about travel that was taken in an official capacity. For example, in HCO 91-29 the Member was appointed by the Speaker as Florida's representative for a Council of State Governments Environmental Mission to Japan. As part of that representation, he was invited to an educational briefing in Washington to assist him in fulfilling his obligations as a representative. Because of State budget shortfalls, the Council agreed to pay his expenses to Washington, which expenses would normally be paid by the State of Florida. The opinion concluded this would be a reportable gift from the Council, regardless of the fact that it could be argued that the payment of such expenses was a gift to the State rather than to the Member, as his expenses would otherwise be reimbursable by the State. The Council's payment of a portion of the travel expenses to Japan were also a "gift," notwithstanding that the House paid for some of the travel and the travel was related to fulfilling official duties as a Member of the House. HCO 91-44. See also, HCO 91-09 (the payment or waiver of parking charges would constitute a gift, "notwithstanding that the ultimate beneficiary is the State of Florida, which would be required to reimburse you for the reasonable expenses incurred by you when parking at the airport for state business."); HCO 91-07 ("linkage" institutes operated within the Department of Education providing travel and other expenses for legislators and other public officials when traveling to the foreign linkage partners would constitute a "gift."); and HCO 91-13 (an individual citizen may charter a plane for the purpose of flying the St. Johns County Legislative Delegation round trip between their districts and Tallahassee to address the Governor and Cabinet, but it would constitute a "gift."). Clearly, if the Legislature intended that transportation in one's official capacity for a matter involving a public purpose is not a "gift," these opinions would have reached completely different results.

11. In addition, if it is not a "gift" as defined by the Legislature whenever a public officer or employee travels in an official capacity on public business at the expense of a person or entity other than his or her public agency, we would be forced to ignore the language of two very specific provisions of the gift law. Subparagraphs 112.312(12)(a)7 and (b)7 exclude from the definition of a "gift" transportation "provided to a public officer or employee by an agency in relation to officially approved governmental business." As this language only addresses transportation provided "by an agency," it clearly means that transportation provided by private persons and entities are not excluded from being a "gift," even if the travel has some official purpose. Also, subsection 112.3148(6) allows the gift, but requires a very specific disclosure, when certain governmental agencies give a gift worth over $100 "if a public purpose can be shown for the gift," even though those agencies may employ lobbyists to influence the recipient's public agency. Again, if it were not a "gift" when what is being provided or paid for ultimately saves money for one's public agency, we would have to ignore this part of the gift law. . . . .

More recently, in CEO 07-3, we acknowledged that Section 112.3148, Florida Statutes, did not prohibit gifts to agencies or require their reporting; but in that opinion, we were considering a discounted conference registration rate offered to the Office of Financial Regulation, not to individual employees. There, it was up to the agency to designate who would attend the conference, not the individual employees, with the agency paying other expenses related to their attendance. We do not view the Mayor's travel in the same way. In this case, the Mayor has received invitations and travel expenses to events precisely because he holds office as Mayor of the Consolidated City of Jacksonville. For this reason, we continue to believe that Sections 112.3148(4) and 112.3149(6), Florida Statutes, govern the Mayor's acceptance of travel. Trips from non-prohibited donors may be accepted and then reported pursuant to Section 112.3148(8), Florida Statutes, on a CE Form 9, Quarterly Gift Disclosure, if the value of the trip exceeded $100. In the same way, honorarium-event related expenses may be accepted but, if paid for by a prohibited donor, disclosed pursuant to Section 112.3149(6), Florida Statutes, on the CE Form 10, Annual Disclosure of Gifts from Governmental Entities and Direct-Support Organizations and Honorarium Event Related Expenses.

The City's desire to reduce the fiscal impact of travel expenses on the City budget by allowing travel costs to be underwritten by others is an understandable goal in these times of economic hardship, and we have consistently construed Section 112.3148, Florida Statutes, as allowing public officers to travel at their agency's expense and then have their agency obtain reimbursement from the donor for their travel without it being considered a reportable or prohibited gift to the public official. In CEO 91-21, a supervisor of elections traveled to view a voting machine manufacturer's factory, and we found reimbursement from the manufacturer to the county was a "gift to the agency" which was neither prohibited nor reportable by Section 112.3148, Florida Statutes. In CEO 92-12, a PSC employee traveled at agency expense to conduct an audit of a utility and the utility then reimbursed the agency for the employee's expense, and we found that the employee had not received a gift. This is not a question of form over substance, or of allowing indirectly that which could not be done directly: an agency's "up-front" payment of an official's travel expenses ensures that the agency has made a decision, in advance, that the travel is necessary, takes advantage of the agency's transparent processes for approving official travel in advance, and ensures that the traveler is reimbursed at the government rate. In this way, the agency can offset the expense to its taxpayers of necessary official travel, while the public is protected against the potential for abuse which could arise if all travel for which any nominal public purpose could be identified were to be considered a gift to the agency. This approach, in our view, achieves the goals of the gifts and honoraria laws, and is consistent with our precedent.

Question 1 is answered accordingly.

QUESTION 2:

Whether monetary donations to a City-maintained fund that would be used to pay for official travel by the Mayor and other City officials would be considered "gifts to the city?" Under the circumstances presented, Question 2 is answered in the affirmative.

You have asked the Commission to opine on the City's proposal to accept monetary donations from third parties and deposit them into a public account on an ongoing basis, where the funds would then be used to pay for the Mayor's travel, as well that of other officials who have need to travel on City business. You refer to this proposal as the "direct payment" method which could protect taxpayer dollars while at the same time fund agency-approved, business-related travel.

In CEO 98-8, we opined that pursuant to Section 112.3148(3), Florida Statutes, a state legislator could not solicit donations for his legal defense fund from lobbyists or from the partners, firms, employers, or principals of lobbyists who lobbied the Legislature, and that he could not accept contributions greater than $100 from these entities without violating Section 112.3148(4), Florida Statutes. We said that gifts from non-prohibited donors could be accepted but would have to be reported on a CE Form 9 if they were greater than $100. In CEO 91-37, we opined that a city commissioner could not solicit funds for a newsletter from lobbyists or from the partners, firms, employers or principals of lobbyists who lobbied the city, and that likewise, he could not accept contributions from those same entities that exceeded $100. We view both of these opinions as distinguishable from the City's proposal because, in both cases, it was the public official who maintained control and access to the donated funds, not a governmental entity. Therefore, where the City receives gratuitous donations from the private sector and then uses the donations to pay for official travel by the Mayor and other officials, we would view those donations as gifts to the City which are neither prohibited nor reportable. This presupposes that the City's process for funding travel costs for its officials through this account is otherwise appropriate, open, transparent, and consistent with law.

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 8, 2013 and RENDERED this 13th day of March, 2013.

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Susan Horovitz Maurer, Chair