CEO 78-40 -- June 13, 1978

GIFT DISCLOSURE

NECESSITY OF REPORTING FREE LEGAL COUNSEL

To: Dick J. Batchelor, Representative, 43rd District, Orlando

Prepared by: Phil Claypool

SUMMARY:

Section 112.3145(3)(d) of the Code of Ethics provides that the statement of financial interests which is to be filed annually shall include a list of all donors "from whom the reporting official received a gift or gifts from one source, the total of which exceeds $100 in value during the disclosure period." The term "gift" is defined for purposes of the Code of Ethics to mean "real property or tangible or intangible personal property, of material value to the recipient, which is transferred to a donee directly or in trust for his benefit or by any other means." Section 112.312(9)(a), F. S. 1977. Inasmuch as "intangible personal property," as defined by s. 192.011(11)(b), does not include services, the receipt of free legal representation cannot be said to constitute a "gift" for purposes of disclosure under s. 112.3145. However, the Commission on Ethics has no jurisdiction to interpret the disclosure requirements contained in s. 111.011, F. S., pertaining to elected officers. The petitioner is advised to contact the Attorney General in this regard in light of his opinions AGO's 074-167, 075-152, and 076-58.

QUESTION:

Does the Code of Ethics for Public Officers and Employees require the disclosure of free legal representation?

Your question is answered in the negative.

In your letter of inquiry you advise that you recently had to appear before the Florida Elections Commission on alleged campaign law violations and that you retained legal counsel for these appearances. You also advise that the attorney who represented you is a personal friend, and although he has sent you several bills in excess of $3,000, he is willing to forgive payment.

The Code of Ethics for Public Officers and Employees provides that the statement of financial interests which is to be filed annually by each "local officer" is to include:

A list of all persons, business entities, or other organizations, and the address and a description of the principal business activity of each, from whom he received a gift or gifts from one source, the total of which exceeds $100 in value during the disclosure period. The person reporting shall list such benefactors in descending order of value with the largest listed first. Gifts received from a parent, grandparent, sibling[,] child, or spouse of the person reporting or from a spouse of any of the foregoing; gifts received by bequest or devise; gifts disclosed pursuant to s. 111.011; or campaign contributions which were reported as required by law need not be listed . . . . [Section 112.3145(3)(d), F. S. 1977.]

The term "gift" is defined in the Code of Ethics as follows:

(a) "Gift," for the purposes of ethics in government and financial disclosure required by law, means real property or tangible or intangible personal property, of material value to the recipient, which is transferred to a donee directly or in trust for his benefit or by any other means.

(b) For the purposes of subsection (a), "intangible personal property" means property as defined in s. 192.011(11)(b). [Section 112.312(9), F. S. 1977.]

Section 192.011(11)(b), F. S. 1977, provides:

"Intangible personal property" means money, all evidences of debt owed to the taxpayer, all evidences of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value.

We cannot say that the receipt of free legal representation constitutes the receipt of a "gift," as that term is defined above, because legal representation is a service rather than real property or tangible or intangible personal property. Accordingly, we find that the Code of Ethics does not require you to disclose free legal representation provided by a friend.

Please be advised that we have no jurisdiction to interpret the disclosure requirements contained in s. 111.011, F. S. 1977. You may wish to contact the Attorney General for advice as to the application of that provision, in light of his opinions AGO's 074-167, 075-152, and 076-58.