GIFT ACCEPTANCE AND DISCLOSURE

COUNTY PROPERTY APPRAISER ACCEPTING PROCEEDS
OF A CHARITABLE AUCTION

To: Loren Levy, Attorney (Tallahassee)

SUMMARY:

A reporting individual may accept monetary gifts that are given to him via an auction. To properly disclose acceptance of these gifts on a Form 9, the reporting individual must separately report each individual monetary donation using the amount of the winning bid as the value of the gift, and list both the donor of the auctioned item, as well as the winning bidder, as the donors of the gift on his or her Form 9. Referenced are CEOs 06-27 and 24-5.

QUESTION 1:

May a County Property Appraiser accept the proceeds of a charitable auction for his benefit, and, if so, how should the gift be disclosed?

This question is answered as follows.

You are an attorney who has requested an ethics opinion on behalf of your client, a County Property Appraiser. As a County Property Appraiser, your client is a reporting individual who must file an annual CE Form 6, "Full and Public Disclosure of Financial Interests."

In your ethics inquiry, you indicate that your client, his wife, and his two teenage daughters recently traveled from Florida to Texas to participate in a junior livestock show. You state that as the family traveled home after the show, they were involved in a tragic motor vehicle accident. You relate that the accident resulted in significant physical injuries to your client and his family. Additionally, you note that your client's truck and livestock trailer were totaled, and the livestock had to be euthanized.

You indicate that participants in the livestock show circuit are a close-knit community and that news of the accident traveled quickly. Within a few days of the accident, you state that your client became aware that an acquaintance of his had set up an auction site whereby individuals could donate items for bidding and/or bid on those items, and that the proceeds of the auction were intended to help offset the costs and expenses caused by the accident.¹ You indicate that the individual who set up the auction site is from Polk County, and his daughter also participates in livestock shows. You note that the auction website was live for approximately one week, and ultimately $101,590 was raised for your client. You state that your client was given a list of the following items: the items donated, the name and contact information of those who donated the items for auction, the name and contact information of those who bought the items, and the auction price (winning bid) of each item. You note that the auction included six "anonymous" winning bids, however, none of those bids exceeded $100. According to your client, none of the individuals on the list appear to be lobbyists or vendors of his office, although two of the individuals who donated are property owners in his County.

You state that your client did not solicit these donations and that he did not authorize or request anyone to set up the auction. You also relate that the $101,590 raised from the auction was disbursed to your client on October 15, 2024. Against this backdrop, you ask whether your client may accept these funds, and, if so, how your client should disclose his acceptance of the funds.

We will first address whether your client may accept the donations. Where the donations are not being offered to influence your client's official decision making and are not being offered by vendors, lobbyists, or principals of lobbyists of his agency, or by political committees,² we may narrow our focus to a certain provision of Florida's gift law, found in Section 112.3148(8), which 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 donee 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.

Essentially, this provision requires a reporting individual or a procurement employee to disclose all gifts valued in excess of $100, unless they are otherwise prohibited by other parts of the statute. The disclosure must occur by filing Form 9, "Quarterly Gift Disclosure," by the last day of the calendar quarter following the quarter when the gift was accepted.

Relevant to your inquiry, a "reporting individual" is anyone who is required by law to file financial disclosure, either Form 6, "Full and Public Disclosure of Financial Interests," or Form 1, "Statement of Financial Interests." § 12. 3148(2)(d), Fla. Stat.

Section 112.312(12), Florida Statutes, defines the term "gift" as:

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 . . .

Based on the facts you present in your inquiry, your client is subject to the gift disclosure requirement because he is, as a current County Property Appraiser, a reporting individual. Your client may accept the monetary donations raised from each winning bid of the auction, as long as neither the donor of a particular item, nor the winning bidder of an item, is a lobbyist, vendor, principal of lobbyists of his agency, or a political committee.³

Your request also asks whether your client may accept anonymous donations. Based on the information you provided, none of the anonymous donations exceeded $100. Thus, your client may accept these donations.⁴ This is distinguishable from CEO 24-5, in which the Commission opined that the reporting individual there could not accept anonymous donations over $100.

To make a proper disclosure on Form 9, your client must disclose, among other things, the value of the gift. The proceeds from each individual auctioned item that are greater than $100 must be disclosed as separate gifts. See CEO 24-5. As a general principle, gifts are valued using the actual cost to the donor, unless the gift law provides for a more specific valuation method. § 112.3148(7)(a), Fla. Stat. We have not previously had the opportunity to opine on how to value monetary donations that were the proceeds of a charitable auction for the benefit of the reporting individual. Therefore, in this instance, we find that the value of each gift for purposes of disclosure is the winning bid amount for the auctioned item, as that is the amount of money that is ultimately being given to your client.

Rule 34-13.400(3) F.A.C., governs how your client should properly disclose the donations he received. Rule 34-13.400(3) F.A.C. states:

(3) The quarterly gift disclosure statement shall include:

(a) A description of the gift, the monetary value of the gift, the name and address of the person making the gift, and the date(s) thereof. If any of these facts, other than the gift description, are unknown or not applicable, the report shall so state.

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

Thus, your client must disclose a description of the gift (in this case, cash), the monetary value of each winning bid, the name and address of the person making the gift, and the date the gift was accepted.⁵

Although the value of each monetary gift is the winning bid for the item that was auctioned off, both the winning bidder and the person who put the item up for auction should be disclosed as donors. The rationale behind this is that it takes both the participation of the donor of the auctioned item and the winning bidder for the gift to occur. But for both parties participating in the auction of a particular item, your client would not have received a monetary gift. Although the winning bidder is the person who actually provided the funds that your client will receive, the donor of the auctioned item provided the value to the transaction. This is also in accordance with Rule 34-13.400(7), F.A.C., which states, "Where a gift valued over $100 has been given to a reporting individual or procurement employee by multiple donors, the names and addresses of all persons or entities who contributed to the acquisition of the gift shall be reported, unless unknown."⁶

In your inquiry, you provided Commission staff with two spreadsheets: one showing the donors of each item to be auctioned and one showing the winning bidder for each item. Because your client ultimately received 196 donations (for 196 auctioned items), these spreadsheets are quite voluminous. Your client may comply with the disclosure requirements by attaching these spreadsheets to his Form 9, as they contain the information that is required for proper gift disclosure under Rule 34-13.400(3) F.A.C.⁷

QUESTION 2:

May a County Property Appraiser accept other gifts provided to him and his family, and, if so, how should those gifts be disclosed?

This question is answered as follows.

In your inquiry, you also mention other gifts your client and his family received as a result of the accident. Specifically, you mention that your client's family has taken delivery of two heifers, one from a breeder in Mississippi and the other from a breeder in Texas. You note that these heifers are titled in the name of each of your client's minor daughters, and the cattle lost due to the accident were also titled in their names. By gifting these heifers to your client's daughters, the donors inherently displaced the costs your client would have had to pay to replace the two cattle that were lost as a result of the accident. Due to the nature of these gifts, and the resulting level of responsibility that your client will have in the care and upkeep of these animals for his daughters (providing shelter, food, veterinary care, etc.), these heifers appear to be indirect gifts to your client that he will be required to disclose on a Form 9, assuming these donors are not lobbyists, vendors, principals of a lobbyist of your client's agency, or political committees. In valuing these two gifts, your client should use the cost to the donors of providing these heifers to your client's family. You also note that another individual would like to donate a small bull, but this has not yet occurred. For the same reasons outlined above, if the bull is ultimately donated, your client will have to disclose his acceptance of this bull on a Form 9.

You state that the International Brangus Breeders Association paid for a hotel room for your client and his family for the night of the accident at a cost of $128.64. As lodging is included in the statutory definition of a gift found in Section 112.312(12), Florida Statutes, your client must disclose this on a Form 9, assuming this donor is not a lobbyist, vendor, principal of a lobbyist of your client's agency, or a political committee. The value of the gift is the cost to the donor: $128.64.

You similarly note that a Brangus Cattle dealer, Trademark Genetics, provided airline tickets for your client and his family to travel home after the accident, at a cost of $2,165.84. As transportation is also included in the statutory definition of a gift found in Section 112.312(12), Florida Statutes, your client should also disclose these tickets on a Form 9, once again assuming that this donor is not a lobbyist, vendor, principal of a lobbyist of your client's agency, or a political committee. Although only one of the tickets was for your client, where the gift is given to someone other than a reporting individual with the intent to benefit the reporting individual, the gift is considered an indirect gift to the reporting individual. Thus, your client must disclose the full value of all of the tickets. See CEO 06-27.

You state that a sheriff's deputy allowed your client to use his truck to drive to the hospital, which constitutes a gift to your client. Transportation in a private conveyance is given the same value as transportation provided in a comparable commercial conveyance. This means a similar mode and class of transportation that is available commercially in the community. See Section 112.3148(7)(d), Florida Statutes, as well as Rule 34-13.500 F.A.C. In accordance with this principle, when making his Form 9 disclosure, your client should use the value that he would have paid to rent a car, to hail a taxi, or to hire a rideshare for a similar time and distance traveled.

Your question is answered accordingly. 8

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 6, 2024, and RENDERED this 11th day of December 2024. .

____________________________________

Luis M. Fusté, Chair

^[1] The site, maintained by GiveSmart.com, allows virtual auctions on its platform.