ABUSE OF POSITION; MISUSE OF PUBLIC POSITION;
CONFLICT OF INTEREST; GIFT PROHIBITIONS

STATE UNIVERSITY BOARD OF TRUSTEES MEMBER AUTHORING
CONTENT FOR PUBLICATIONS REGARDING MATTERS
RELATED TO HIS STATE UNIVERSITY

To: Name Withheld (New College of Florida)

SUMMARY:

A trustee of a state university is not prohibited, in his private capacity, from writing and accepting payment for publishing content on written or online media platforms concerning matters related to the university, provided the content concerns only publicly available information. Additional guidance is provided concerning whether the contractual relationships formed due to his journalism present a prohibited conflict of interest for him, and whether he is limited in soliciting personal donations through the online media platform. Referenced are CEO 23-1, CEO 22-4, CEO 22-3, CEO 19-13, CEO 16-2, CEO 16-1, CEO 08-20, CEO 08-19, CEO 08-2, CEO 06-6, CEO 95-28, CEO 92-21, CEO 90-15, CEO 89-21, and CEO 86-6.

QUESTION 1:

Would a member of the board of trustees for an institution within the State University System be in violation of the statutory and Constitutional prohibitions over which the Commission has jurisdiction were he to author and accept payment for content related to the institution?

Question 1 is answered as follows.

In your letter of inquiry and additional information provided to our staff, you indicate you are the General Counsel for New College of Florida (NCF), a public liberal arts college in the State University System of Florida. You are bringing this inquiry on behalf of a recently appointed member of the University's Board of Trustees.¹ You indicate the Trustee produces newsletters, commentaries, and videos for two different platforms—a written journal published by the Manhattan Institute for Policy Research and an online service called Substack. The Trustee would like to publish content related to NCF on these platforms, and promote such content through his Twitter account. He inquires whether this constitutes a prohibited conflict of interest with his role as a NCF Trustee. Before engaging in legal analysis, the following discussion is offered concerning the Trustee's involvement with both media platforms.

Regarding the Manhattan Institute for Policy Research, the organization is a think tank based in New York City and comprised of scholars, journalists, activists, and civic leaders.² The organization focuses upon offering commentary and research concerning a range of topics, such as urban affairs, policing, education, and housing. The organization's efforts include publishing the City Journal, which you indicate is a public policy magazine and website. The Trustee is a paid employee and director of the Manhattan Institute, and he serves as the editor for the City Journal. As part of his editorial duties, he writes articles, editorials, and commentaries for the City Journal.

Regarding Substack, you indicate it is an online platform for journalists and content creators where they can publish newsletters, articles, and videos, and engage in discussions with readers. The Trustee is not employed by Substack, but he has signed an agreement allowing him to have an account on its platform. On this account, he publishes articles, commentary, and videos on a variety of issues, including higher education matters. You indicate the majority of the content that the Trustee produces on Substack can be viewed without any monetary charge, although certain content—kept behind a paywall—requires a paid subscription. As will be explained in subsequent questions in this opinion, the money paid by subscribers is sent to a third-party payment processor, which—in turn—takes a percentage for its services, sends a pre-set portion of the subscription fee to Substack, and then distributes the remaining money to the Trustee. The Trustee is not paid by Substack; his compensation comes from the subscriptions made to his account.

Importantly, these journalism opportunities did not arise due to his appointment to NCF's Board of Trustees. The Trustee's employment at the Manhattan Institute, his work on the City Journal, and his involvement with Substack all preceded his appointment to the Board.

You indicate that now, following his appointment, he wants to continue these journalistic endeavors, in part by publishing content in the City Journal and on his Substack account pertaining to NCF.³ He also intends to use his Twitter account to draw attention to these articles. You emphasize the "strong majority of his content" for both the City Journal and Substack will not relate to NCF specifically, but will be more general in nature, concerning broader issues affecting education and schools. However, you indicate some of the content will specifically refer to and offer commentary regarding NCF, and he inquires whether this will trigger any statutory or Constitutional prohibition over which the Commission has jurisdiction.

Of note, you indicate any content generated by the Trustee concerning or referring to NCF will be non-monetized and non-paywalled, meaning this content will not generate any income for him. Because it appears he is employed by the Manhattan Institute, presumably at an established salary, this appears more relevant to content on his Substack account. Accordingly, from what you indicate, any content posted on his Substack account specifically related to or concerning NCF will be freely available, meaning it will be viewable without a paid subscription. However, you indicate even non—monetized and non—paywalled articles on Substack do include a link for interested readers to subscribe to the Trustee's account, as that option is built natively into the platform.

We have issued past advisory opinions regarding whether public officers may report or offer commentary for public consumption on matters affecting their public agencies. These prior opinions have analyzed this issue under two statutes, Sections 112.313(6) and 112.313(8), Florida Statutes, which state:

MISUSE OF PUBLIC POSITION.—No public officer, employee of an agency, or local government attorney 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. [Section 112.313(6), Florida Statutes]

DISCLOSURE OR USE OF CERTAIN INFORMATION.—A current or former public officer, employee of an agency, or local government attorney may not disclose or use information not available to members of the general public and gained by reason of his or her official position, except for information relating exclusively to governmental practices, for his or her personal gain or benefit or for the personal gain or benefit of any other person or business entity. [Section 112.313(8), Florida Statutes]

These provisions prohibit the Trustee from corruptly⁴ using his public position or the resources thereof, or using "inside information," to benefit himself or any other person or entity. Also relevant—although it did not become effective until December 31, 2020—is the Constitutional prohibition found in Article II, Section 8(h)(2), Florida Constitution,⁵ which provides:

A public officer or public employee shall not abuse his or her public position in order to obtain a disproportionate benefit for himself or herself; his or her spouse, children, or employer; or for any business with which he or she contracts, in which he or she is an officer, a partner, a director, or a proprietor; or in which he or she owns an interest. The Florida Commission on Ethics shall, by rule in accordance with statutory procedures governing administrative rulemaking, define the term "disproportionate benefit" and prescribe the requisite intent for finding a violation of this prohibition for purposes of enforcing this paragraph. Appropriate penalties shall be prescribed by law.

In the prior opinions, which are summarized below, we concluded there was no violation of Sections 112.313(6) or 112.313(8) for two main reasons: (1) any reporting or journalism was done in a private capacity, separate and apart from the use of the public officer's official position; and (2) the reporting or journalism was confined to publicly available information.⁶

For example, CEO 90-15 addressed a city commissioner who was employed by a newspaper to write columns and articles concerning the activities of the city commission. We acknowledged that using his status as a reporter to promote his stance on a political issue or to criticize the stance of an opponent might achieve a political benefit for him. Nevertheless, we concluded that he was not using his office to generate this content, as would be needed for the prohibition in Section 112.313(6) to apply. We emphasized "his actions in writing [the columns and articles] would be taken in his private capacity rather than in his public capacity." And, regarding Section 112.313(8), we concluded the statute would not be violated so long as all the information in the columns or articles that he wrote was available to the public, and could be discussed or explained with any member of the public.

More recently, in CEO 16-2, Question 3, we found no violation of Section 112.313(6) would occur if a member of a county parks and recreation council wrote columns for a local newspaper addressing matters pertaining to county parks. We wrote:

[A]lthough your use of the newspaper could achieve benefits for you, such an action, without more, will not violate Section 112.313(6). Because you will not be acting in a public capacity by writing a column or making comments concerning park-related issues, it cannot be said that these actions will be a use of public office under Section 112.313(6).

Similarly, in CEO 92-21, we found the statutory prohibitions would not preclude a county sheriff from owning a local newspaper that was reporting on county business. We advised the sheriff that because his ownership of the newspaper was in his private capacity, and so long as he did not use public resources to produce any of its articles or columns, Section 112.313(6) would not apply. We did caution the sheriff, though, not to use confidential criminal investigative information to give his newspaper an advantage over other publications, as such conduct would violate Section 112.313(8).

And, finally, CEO 86-6 addressed whether a public employee could be paid by a newspaper for writing a job-related article. In particular, the opinion involved a chief assistant public defender who was paid $150 by a local newspaper for writing commentary on the juvenile justice system and on a particular client whom the public defender's office had represented. We found no violations of Section 112.313(6) or 112.313(8), noting that "all information contained in the commentary about the case is a matter of court record" and "was available to members of the general public[.]"

Considering the reasoning in these prior opinions, we find the Trustee will not automatically violate Section 112.313(6) or the prohibition in Article II, Section 8(h)(2), Florida Constitution, simply by reporting or publishing content related to NCF in the City Journal or on Substack. His authoring of such content will be in his private capacity; it will not be done through his public position, as would be needed for the statutory prohibition to apply. Moreover, so long as the content deals with information fully available to the public, there will be no violation of Section 112.313(8). This means, of course, that the Trustee will have to confine his articles, commentary, and videos to information derived from public records or public meetings, and he cannot use information that is exempted or not subject to the public records law. Similarly, while he can use conversations with NCF staff consisting of information that is public record and can be discussed or explained with any member of the public, any information exempted from or not subject to the Sunshine Law or the public records law should not be referenced. The Trustee will need to keep his content within these parameters to avoid a violation of the prohibitions discussed herein.⁷

We recognize an argument could be made that public officers-such as the Trustee-should not profit in any way from the information or skills that they acquire in their public positions. However, so long as the Trustee confines his articles, videos, and commentary to publicly available information, as described above, his content will not rely upon his service on the Board of Trustees and could be written by anyone. We decline to find, without more, that such actions constitute use of one's public position.

We also acknowledge that readers may be more prone to subscribe to the City Journal to the Trustee's Substack account given his newly—appointed status as a NCF Trustee, particularly if he will be publishing content related to NCF. However, the possibility that readers may be more interested in the Trustee's content due to his public position does not provide a basis for applying the prohibitions discussed above. In CEO 90-15, which dealt with a city commissioner acting as a paid reporter, we found "[a]lthough most reading the article[s] will recognize his name and know that he is a [c]ity [c]ommissioner, this factor of name recognition alone is not sufficient to constitute a use of public office. To find otherwise would prohibit a public official from engaging in almost any private business." See also CEO 16-2 (stating "that while readers might recognize [the public officer's] name on [his] articles and realize he was a public officer, name recognition [is] not sufficient to constitute a use of public office"). In other words, the possibility that the Trustee's readership and subscriptions may increase due to his public position does not automatically equate to a misuse or abuse of his public position.⁸

However, we do offer some words of caution to the Trustee. It is critical that he not use NCF personnel to prepare the content that he privately publishes. He must author the content personally-or with others not affiliated with NCF-to avoid an application of the statutory prohibitions previously discussed. Also, to prevent any confusion, when the Trustee comments on matters related to NCF, he should emphasize he is sharing only his personal opinions and not the opinions of the university board on which he serves. This will clarify he is offering only his personal opinion and is not speaking for the university itself, which could be construed as a use of his public position.

Question 1 is answered accordingly.

QUESTION 2:

Does the Trustee have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, if he continues in his employment or contractual relationships with the media platforms for which he is publishing content?

Question 2 is answered in the negative.

In your inquiry, you indicate the Trustee seeks to clarify "whether his journalism or social media presence creates a conflict of interest with his role as a Trustee of NCF." This requires analysis beyond merely considering whether he can publish articles related to NCF in the City Journal and on Substack. His employment and contractual relationships with these media platforms also must be examined to ensure they do not create a prohibited conflict of interest.

The statute relevant to such an examination is Section 112.313(7)(a), Florida Statutes, which states:

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 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 Section 112.313(7)(a) prohibits the Trustee from having employment or a contractual relationship with any agency or business entity that is subject to the regulation of, or is doing business with, his agency, which would be NCF. The second part of the statute prohibits him from having employment or a contractual relationship that will create a "continuing or frequently recurring" conflict of interest with his duties as a Trustee, or that will "impede the full and faithful discharge of [his] public duties." The following analysis will apply the statute to the Trustee's employment with the Manhattan Institute for Policy Research—which includes his service and writings for the City Journal—as well as his relationship with Substack.

Turning first to his employment with the Manhattan Institute for Policy Research, you indicate this entity is not doing business with NCF and is not subject to NCF's regulation. Assuming there is no other connection between the Institute and NCF, it does not appear this employment creates any prohibited conflicts of interest for the Trustee under Section 112.313(7)(a).

Turning next to the Trustee's relationship with Substack, the application of Section 112.313(7)(a) depends upon understanding how this media platform operates. As discussed in Question 1, Substack is an online platform on which authors can create accounts and post content, similar to having a YouTube channel or creating an Instagram account. The Trustee is not employed by Substack and is not paid by it. Instead, the Trustee is compensated when individuals subscribe to his account to view content kept behind a paywall. Each subscription is paid to a third-party payment processor, which separately distributes percentages of the subscription fee to Substack and to the Trustee.

Publicly available information indicates that authors creating an account on Substack have to sign a publisher's agreement. While they continue to own any original content that they post, the publisher's agreement gives Substack a limited license to promote that content. You indicate the Trustee entered into this publisher's agreement with Substack when he first established his account.

It also appears there is a contractual relationship between each Substack author and the third-party payment processor, inasmuch as the processor is legally obligated to remit a portion of each subscription fee to the author. To this end, the third-party payment processor must annually prepare and provide each Substack author with a Form 1099-K, which is a Federal form used by credit card companies and third-party payment processors to report the payment transactions that they have processed for retailers and third parties. The Form 1099-K is purely informational and does not create an employment or independent contractor relationship between the third-party payment processor and the Substack author. It merely summarizes the sales activity on each account, and the processor sends copies of it to both the author and the IRS.

In short, by having a Substack account, the Trustee has ongoing contractual relationships with both Substack and the third-party payment processor. The question then becomes whether either entity is conducting business with NCF or is being regulated by NCF, as would trigger the statutory prohibition in Section 112.313(7)(a). Because you indicate neither Substack nor the third-party payment processor have any such relationship with NCF, and assuming no other connection arises between these entities and NCF, the Trustee's contractual relationships with them do not create prohibited conflicts of interest for him under Section 112.313(7)(a).

Question 2 is answered accordingly.

QUESTION 3:

Does the Trustee have a prohibited conflict of interest under Section 112.313(7)(a), Florida Statutes, given the contractual relationship that he has with each subscriber to his online media account?

Question 3 is answered as follows.

An additional issue under Section 112.313(7)(a) concerns whether the Trustee will have a prohibited conflict of interest due to his relationship with each subscriber to his Substack account. From what you indicate, and as previously discussed, certain content that the Trustee posts on Substack can be freely accessed and viewed by any reader, regardless of whether they have subscribed to his account. This first category of readers does not create any conflicts of interest for the Trustee. However, additional content, kept behind a monetized paywall, is available only to those who have subscribed to the Trustee's account by transmitting money to the third-party payment processor. The question then becomes whether the Trustee's relationship to this second category of readers—his subscribers—could trigger the statutory prohibition in Section 112.313(7)(a).⁹

Regarding these subscribers, you indicate the Trustee has the discretion to set and modify his subscription fee without any involvement from Substack. Moreover, Substack has little to no involvement in dealing with account subscribers. You indicate that account holders, such as the Trustee, have the authority to remove subscribers from their accounts unilaterally. Moreover, Substack's Terms of Use indicate that it is not liable for any disagreement between its account holders and their subscribers, including disputes over the payment of subscription fees.

Considering how Substack operates, we find a contractual relationship exists between the Trustee and each of his subscribers. In the past, we have adopted the substantive law of contract when evaluating whether a "contractual relationship" exists for purposes of Section 112.313(7)(a), and have cited the following definition from Black's Law Dictionary (Fifth Edition, 1979) when interpreting the phrase:

[a]ny relationship between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.

See CEO 23-1 and CEO 95-28. We also cited a similar definition in CEO 89-21, indicating:

The term 'contract' has been defined as a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty. Another definition is that a 'contract' is an agreement upon a sufficient consideration to do or refrain from doing a particular law thing. [11 Fla. Jur. 2d Contracts, Section 1.]

Here, based on the Trustee's promise of allowing access to paywalled content, the subscribers provide consideration to him in the form of subscription fees paid to the third-party payment processor. Substack itself is not a party to this arrangement and the Trustee has the authority to end the relationship by removing individual subscribers on his own. Accordingly, it appears the Trustee has a contractual relationship with each paid subscriber to his Substack account.

Applying this finding to the statute, the Trustee is prohibited under Section 112.313(7)(a) from accepting or continuing a subscription with any "business entity" or "agency" that is doing business with NCF or is being regulated by NCF. Such a contractual relationship would create a prohibited conflict of interest for him under the first part of the statute. Importantly, the statutory prohibition applies only to contractual relationships with business entities¹⁰ and agencies,¹¹ not private individuals. Accordingly, the Trustee should examine his subscription list to ascertain if any current subscribers are business entities or agencies engaged in a business or regulatory relationship with NCF. You indicate the Trustee is able to view the username and email address of each of his subscribers, and, to the best of his knowledge, none of his current subscribers are conducting business with NCF. We encourage him to be vigilant in this regard, if he chooses to continue allowing subscriptions to his Substack account.¹²

QUESTION 4:

Do donations given to the Trustee through his online media account constitute prohibited "gifts" under Section 112.3148, Florida Statutes, or prohibited "expenditures" under Section 112.3215, Florida Statutes?

Question 4 is answered as follows.

Language on the Trustee's Substack page also asks readers to "become a patron" of his work by donating money to him. In particular, the Trustee's Substack page states, "If you want to support my work, you can contribute via credit card, PayPal, or Bitcoin." There are hyperlinks on the page taking readers to webpages where the donations can be made. The Trustee's Substack page also indicates, "[l]arger donors can make a tax-deductible contribution to my 501(c)(3) nonprofit" and provides information where such a contribution can be sent. You indicate any donations to the Trustee or his nonprofit are separate and apart from a subscription to his Substack account. In other words, a reader can donate money to the Trustee or his nonprofit regardless of whether they are a subscriber. The following analysis addresses whether the Trustee is prohibited or limited in engaging in such solicitations.

Initially, we note NCF is part of the State University System within the Executive Branch (see Section 1001.705(1)(d), Florida Statutes), and the Trustee, as a member of a state university board of trustees, must annually file the CE Form 1 ("Statement of Financial Interests"). See Section 112.3145(1)(c)3., Florida Statutes. Accordingly, the Trustee is subject to Section 112.3148, Florida Statutes (the "gifts" law), and Section 112.3215(6)(a), Florida Statutes (the "expenditure ban"), as he is an Executive Branch agency "reporting individual" required to file financial disclosure. See CEO 16-1 and CEO 08-2, Question 2. The question then becomes what portions of the gift law and the expenditure ban will apply to the donations being solicited by the Trustee through his Substack account.

The statute most pertinent is Section 112.3148(3), Florida Statutes, which provides:

A reporting individual or procurement employee is prohibited from soliciting any gift from a vendor doing business with the reporting individual's or procurement employee's agency, a political committee as defined in s. 106.011, or a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.

Section 112.3148(3) prohibits the Trustee from soliciting for himself or his personal nonprofit a gift of any amount from a lobbyist of NCF,¹³ the partner, firm, employer, or principal of such a lobbyist, a vendor of NCF,¹⁴ or a political committee (hereinafter, throughout the remainder of this opinion, "prohibited sources"). See also Section 112.31485(2)(a), Florida Statutes (specifically prohibiting "reporting individuals" from soliciting gifts of any amount from political committees).

We acknowledge that the Trustee is not engaging in a direct or in-person solicitation through his Substack page, but is making a general or collective request for funding from anyone who wants to contribute. However, we recently found the term "soliciting," as used in Section 112.3148(3), does not have to be personal or direct, but encompasses general funding requests made collectively to a group or community. See In re Douglas Underhill, Complaint Nos. 20-060, 20-073, 20-103 (consolidated), Final Order No. 22-041.¹⁵ Accordingly, we find the general request for donations on the Trustee's Substack page qualifies as "soliciting" for purposes of Section 112.3148(3).

Given the applicability of the statute, the Trustee has two choices. Clearly, he would not be in violation of Section 112.3148(3) if he were to remove all language on his Substack page requesting donations for himself or his nonprofit. His other choice is to keep the language requesting donations, but also specify that the prohibited sources identified above cannot contribute. Only by adding this limiting language will he be able to continue soliciting donations through Substack without violating Section 112.3148(3).

The following guidance is also provided concerning any donations that the Trustee may receive on behalf of himself or his personal nonprofit. If a prohibited source were to offer a donation unprompted—meaning the Trustee did not solicit it—three prohibitions will apply.

First, the Trustee, as a "reporting individual," will be prohibited from accepting a donation of any amount to himself or his nonprofit if it is offered by a political committee. Section 112.31485(2)(a), Florida Statutes, imposes a flat ban on such donations, stating:

A reporting individual or procurement employee or a member of his or her immediate family is prohibited from soliciting or knowingly accepting, directly or indirectly, any gift from a political committee.

The only exception, described in Section 112.31485(1)(a), Florida Statutes, would be if the gift being offered by the political committee is "primarily related to contributions, expenditures, or other political activities authorized pursuant to chapter 106." Otherwise, donations to the Trustee or his nonprofit coming from political committees should be refused.

Second, any donation to the Trustee or his personal nonprofit by a lobbyist or principal of a lobbyist will be considered an "expenditure," subject to the restrictions in Section 112.3215(6)(a). The term "expenditure" is defined in Section 112.3215(1)(d) to mean "a payment, distribution, loan, advance, reimbursement deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying." (emphasis added). While a donation to the Trustee or his nonprofit may not, at first blush appear, to be made "for the purpose of lobbying," the statute clarifies that "lobbying" can encompass any "attempt to obtain the goodwill of an agency official or employee." See Section 112.3215(1)(f), Florida Statutes and Rule 34-12.180, F.A.C. We find a donation to the Trustee or his personal nonprofit fits within this description.16

The question then becomes under what circumstance the Trustee can accept such an expenditure. Section 112.3215(6)(a) addresses this by stating:

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.

This provision is tailored only to Executive Branch agency reporting individuals, such as the Trustee, accepting gifts from lobbyists or principals of lobbyists of Executive Branch agencies. See Sections 112.3215(1)(a) and 112.3215(1)(f), Florida Statutes. But its meaning is clear: the Trustee as an Executive Branch agency reporting individual cannot accept a donation (i.e., a goodwill-engendering "expenditure") of any amount on behalf of himself or his personal nonprofit from any Executive Branch agency lobbyists or principal. See CEO 06-6. This applies even if the lobbyist or principal has no connection to NCF, as the prohibition is an across-the-board ban on expenditures coming from any Executive Branch agency principal or lobbyist. See CEO 08-19, Question 3.

Third, even if the donation is not coming from a political committee or an Executive Branch agency lobbyist or lobbyist principal, the Trustee as a reporting individual is subject to the prohibition in Section 112.3148(4), Florida Statutes, which states:

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 vendor doing business with the reporting individual's or procurement employee's agency, a political committee as defined in s. 106.011, or 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) prohibits the Trustee, or anyone acting on his behalf, from accepting "directly or indirectly" any donation to himself or his personal nonprofit worth more than $100 from a vendor, lobbyist, or principal of a lobbyist of NCF, or from a political committee. Please note the statutory definition of a "lobbyist" for purposes of Section 112.3148(4)—which, as previously noted, is found in Section 112.3148(2)(b)1.—does not contain the exemptions for the term found in Section 112.3215(1)(h), meaning the term as it is used in Section 112.3148 is broader than in Section 112.3215.

And, finally, if the donation to the Trustee or his personal nonprofit is coming from an individual or entity who is not a prohibited source mentioned above, he may accept the donation, but he will be subject to the reporting requirements of Section 112.3148(8), Florida Statutes. These requirements would apply, for example, if a private citizen or business entity with no connection to NCF offers a donation. Section 112.3148(8) states:

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 done to the donor within 90 days of receipt of the gift to reduce the value to $100 or less, 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.

In essence, if the Trustee receives a donation to himself or his personal nonprofit exceeding $100 from a non-prohibited source, he must disclose it. This disclosure should be made on our Form 9, "Quarterly Gift Disclosure," by the last day of the calendar quarter following the quarter in which the donation was received. For example, if a gift is received in March, it should be reported by June 30.

Because this analysis is lengthy, the following summary is offered: (1) the Trustee must remove the solicitation for donations on his Substack page or add limiting language to the solicitation; (2) the Trustee must decline any donations to himself or his nonprofit from a political committee, or an Executive Branch agency lobbyist or lobbyist principal, as those terms are defined in Section 112.3215; (3) the Trustee may not accept donations to himself or his nonprofit of more than $100 from a vendor or lobbyist of NCF, as those terms are defined in Section 112148; and (4) the Trustee must report any other donations not otherwise prohibited to himself or his nonprofit of more than $100 on a quarterly CE Form 9.

Question 4 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 28, 2023, and RENDERED this 2nd day of August, 2023.

____________________________________

Glenton "Glen" Gilzean, Jr., Chair

^[1]Section 1000.21(6)(k), Florida Statutes, lists NCF as part of the State University System, and Section 1004.32(3), Florida Statutes, authorizes the Governor to appoint all twelve members of its Board of Trustees.