CEO 90-73 -- October 23, 1990

GIFT DISCLOSURE

APPLICABILITY OF GIFT DISCLOSURE LAW

TO TRIPS OF AN ELECTED OFFICIAL

To: The Honorable Norman Ostrau, State Representative, District 96 (Plantation)

SUMMARY:

An elected public officer is required by Section 112.3148, Florida Statutes, to disclose any trip valued at over $100 that is paid for in whole or in part by another if the trip is related to his public service, unless the trip is paid for by his or another governmental agency. Therefore, a trip taken by the official that serves a public purpose should be reported if the expenses for the trip are paid by a private entity; if paid for by the official's agency or by another governmental entity, the trip need not be reported. Where the official takes a trip at the expense of another but with the agreement that he later will make reimbursement for the full cost of the trip, the trip should be reported if its value is over $100, it is paid for by a private entity, and it is related to his public service. The statute also requires the official to disclose the share of his expenses on a trip paid by another where he and the other person have agreed to split the cost of the trip in approximately equal portions, with each paying for different costs incurred by both as part of the trip, if the expenses of the trip paid by the other person on the official's behalf exceed the $100 threshold and if they are related to his public service. However, for example, if the official is taking the trip with a personal friend who has no conceivable business before the official's agency, the portion of his expenses paid for by his friend would not be reportable, as they would not be related to his public service.

QUESTION 1:

Are you, a State Representative, required under Section 112.3148, Florida Statutes, to disclose a trip, the value of which exceeds $100, where there is a public purpose served by your going on the trip and where the expenses of the trip are paid by the Legislature, by another governmental entity, or by a private entity?

The Code of Ethics for Public Officers and Employees contains two types of provisions concerning gifts to public officials--prohibitions against accepting gifts under certain circumstances and disclosure requirements for those gifts that can be accepted. The prohibitions appear in Section 112.313(2), Florida Statutes, which prohibits the solicitation or acceptance of anything of value based upon any understanding that the official action of the public officer would be influenced, and in Section 112.313(4), Florida Statutes, which prohibits the acceptance of any compensation, payment, or thing of value when the official knows, or with the exercise of reasonable care should know, that it was given to influence an official action in which he was expected to participate. In addition, it appears that Section 112.313(6), Florida Statutes, which prohibits the corrupt use of official position to secure a special benefit for oneself or another, would prohibit the use of an official's public position to solicit gifts for the official. As your questions concern disclosure only, however, we will assume that none of these prohibitions would be applicable.

Gift disclosure by elected public officers and certain appointed officers is governed by the following provision:

Each elected public officer and each appointed public officer who is required by law, pursuant to s. 8, Art. II of the State Constitution, to file a full and public disclosure of his financial interests shall file a statement containing a list of all contributions received by him or on his behalf, if any, and expenditures from, or disposition made of, such contributions by such officer which are not otherwise required to be reported by chapter 106, with the names and addresses of persons making such contributions or receiving payment or distribution from such contributions and the dates thereof. The statement shall be sworn to by the elected public officer as being a true, accurate, and total listing of all of such contributions and expenditures. [Section 112.3148(2)(a), Florida Statutes.]

For purposes of this disclosure requirement, the term "contribution" is defined as follows:

'Contribution' means any gift, donation, or payment of money the value of which is in excess of $100 to any public officer or to any other person on the public officer's behalf. Any payment in excess of $100 to a dinner, barbecue, fish fry, or other such event shall likewise be deemed a 'contribution.' However, a gift representing an expression of sympathy and having no material benefit or a bona fide gift to the officeholder by a relative within the third degree of consanguinity for the personal use of the officeholder shall not be deemed a 'contribution.' This section does not apply to complimentary parking privileges bestowed upon a legislator by an airport authority, or to honorary memberships in social, service, or fraternal organizations presented to an elected public officer merely as a courtesy by such organizations.

In another opinion adopted this day, we have concluded that any trip, the value of which exceeds $100, that is paid for in whole or in part by another and that is related to an official's public service must be disclosed unless the trip is paid for by the official's or another governmental agency. Therefore, any trip which you have taken or will take that is paid by the Legislature or by another governmental entity need not be disclosed. With respect to trips that are paid for by a private entity, the most significant question is not whether there is a public purpose served by your going on the trip, but rather is whether the trip is related to your public service.

By "related to your public service," we explained in the other opinion, we do not mean to exclude, for example, trips paid for by a lobbyist during which no legislative business is discussed. Rather, we indicated, the emphasis of the law is on requiring the disclosure of trips that are provided to an official because of his public service. Therefore, a trip paid for by a person who has or anticipates having business before the Legislature should be disclosed, as such a trip would be related to your public service in the sense of having been provided to you because of your public service. To the extent that the same trips were not paid for by the lobbyist before you took office, such a trip would be related to your public service. On the other hand, trips paid for by your private employer solely in connection with the duties of your private employment or trips paid for by a personal friend who has no conceivable business before the Legislature would not be reportable, as they would not be related to your public service.

As this question addresses trips you may take for which a public purpose would be served by your going on the trip, it appears that such trips would be related to your public service and therefore should be reported if paid for by a private entity; if paid for by the Legislature or by another governmental entity, the trip need not be reported. Your question is answered accordingly.

QUESTION 2:

Are you required under Section 112.3148, Florida Statutes, to make any disclosure where you reimburse the provider of a trip for the cost of the trip at a later date?

In your letter of inquiry you question whether and to what extent disclosure should be made if you reimburse the provider of a trip at a later date. Particularly, you ask whether the use of the provider's money interest free for the period of time until reimbursement is made should be considered a gift and, if so, how should such a gift be valued? You also inquire about what would be considered a reasonable time for reimbursement.

Having concluded that for purposes of Section 112.3148 any trip paid for by a governmental entity need not be disclosed, we find that if you take a trip that is paid for by a governmental agency you need not report the trip, regardless of whether you reimburse the agency for your expenses. If the trip is paid for by a private entity and is related to your public service, as described in our response to your first question, the trip should be reported, even if you make reimbursement for the full cost of the trip. If the trip is not related to your public service, it need not be reported.

In the past, we have advised that nothing in the disclosure laws prohibits a public official from adding an explanatory note on the disclosure form in order to assure that the information reported is complete, accurate, and not misleading. Section 112.3148(2)(a) requires the disclosure of expenditures from or the disposition made of contributions received by the public officer, including the names and addresses of persons receiving payment or distribution from such contributions and the dates thereof. Although the terms of this disclosure requirement would not be applicable to reimbursement of the cost of a trip (unless reimbursement were made out of funds received as a "contribution" under the statute), we are of the opinion that it would be entirely appropriate to note on the disclosure form the fact that you had reimbursed the provider of the trip for its cost and the date of reimbursement.

Accordingly, we find that where you take a trip at the expense of another, even with the agreement that you will make reimbursement for the full cost of the trip, the trip should be reported if it is related to your public service and if it is not paid for by a governmental entity.

QUESTION 3:

Are you required under Section 112.3148, Florida Statutes, to disclose the share of your expenses on a trip paid by another where you and the other person have agreed to split the cost of the trip in approximately equal portions, with each paying for different costs incurred by both as part of the trip?

You further question whether and to what extent disclosure should be made if you go on a trip with another person and the cost of the trip is split, with each paying approximately an equal portion. You provide as an example a situation where you go on a hunting trip with another individual with each of you paying your own air fare, but you pay for the rental car and lodging while the other person pays for meals, the cost of hunting licenses, ammunition, etc., so that each of you pays approximately an equal portion of the trip. Under these circumstances, you ask whether you must report as a gift your share of those expenses paid by the other person.

Again, as we have concluded that for purposes of Section 112.3148 any trip paid for by a private person or entity and related to your public service should be disclosed and that any quid pro quo you may provide for the trip is irrelevant to the disclosure issue, it follows that expenses of the trip paid by the other person on your behalf should be reported if they exceed the $100 threshold and if they are related to your public service. As explained in our response to your first question, if you are taking the trip with a personal friend who has no conceivable business before the Legislature, the portion of your expenses paid for by your friend would not be reportable, as they would not be related to your public service. As we advised with respect to your second question, we are of the opinion that if the trip is reportable it would be entirely appropriate to note on the disclosure form the fact that you had paid an equal share of the expenses of the trip for the other person while on the trip.

Accordingly, we find that you are required under Section 112.3148, Florida Statutes, to disclose the share of your expenses on a trip paid by another where you and the other person have agreed to split the cost of the trip in approximately equal portions, with each paying for different costs incurred by both as part of the trip, only if the expenses paid for by the other person are related to your public service and exceed $100. Otherwise, the expenses need not be disclosed.