CEO 91-4 -- January 30, 1991

GIFT DISCLOSURE

DISCLOSURE OF TRIPS PROVIDED TO

CITY MAYOR AND HIS SPOUSE

To: (Name withheld at the person's request.)

SUMMARY:

The current disclosure requirements applicable to trips taken by a city mayor and his wife at the expense of another vary, depending upon the timing and circumstances of the trip. The following rules generally will apply, where trips valued at over $100 are paid for by the mayor's private clients in connection with his private employment or at the expense of other nongovernmental entities, and where the inviting client or entity does no business with the city and would not benefit from any action of the city.

Under Chapter 90-502, Laws of Florida, trips taken during 1990 or pursuant to an agreement made before January 1, 1991, are governed by Section 112.3148, Florida Statutes (1989). With respect to trips paid for by the mayor's clients, neither his expenses nor those of his wife would be reportable, as the trips would not have been provided because of his public service. CEO 90-72 and CEO 90-73 are referenced. Trips taken by the mayor or his wife at the expense of other entities would be reportable on Form 7 if they are provided because of the mayor's public service, such as where the trip involves his giving a speech and the travel invitation arises out of or in connection with his position as mayor.

Trips taken during 1991 and not pursuant to an agreement made before January 1, 1991 are governed by the requirements of Chapter 90-502. It is assumed that the entities sponsoring the trips are not political committees, committees of continuous existence, lobbyists (as defined in the law), or partners, firms, employers, or principals of such lobbyists. With respect to the mayor's travel that is paid for by a client, he need not disclose the trip as a gift on the new quarterly gift disclosure filing (Form 9), so long as the trip is associated with his employment by the client. However, if the trip is not associated with his employment, it should be reported on Form 9. If the client pays the expenses of his wife to travel with him, this gift should be disclosed on Form 9. Trips taken by him, or by him and his wife, that are paid for by nongovernmental entities who are not clients need not be disclosed as gifts if they are "related to an honorarium event." If such trips are not "related to an honorarium event," they will constitute gifts and should be reported on Form 9.

QUESTION:

Are you, a City Mayor, required to disclose as gifts trips taken by you and your wife at the expense of clients in connection with your private employment or at the expense of other nongovernmental entities, where the inviting client or entity does no business with the City and would not benefit from any action of the City?

In your letter of inquiry, you advise that you serve as the Mayor of the City of Miami. You also advise that your private employment requires travel within the country and overseas. Your wife often is invited to travel with you, and her expenses often are paid by the inviting client, as the client usually feels that her presence lends weight and elegance to the functions that you attend.

You also advise that other travel invitations may come from nongovernmental entities that are not clients and typically involve your giving a speech. Often your wife is invited on these trips because the entity feels that her presence adds to the formalities and protocol of the event.

In each case, you advise, the inviting client or entity does no business with the City and would not conceivably benefit from any action of the City Commission or of the City. You question whether the expenses of these trips, such as travel and lodging, for you or your wife must be reported as gifts if they exceed $100 in value.

Due to the recent revisions of the gift law by the Legislature at the end of 1990, the answers to your questions will depend on a number of factors, including the time when the trip is offered or taken, who is paying the expenses of the trip, and the purpose and circumstances of the trip. Because your letter provides no details regarding any particular trip, our opinion can only provide you with general advice. Should you have any questions about how the law applies to a particular trip, we encourage you to request a subsequent opinion.

Chapter 90-502, Laws of Florida, which became law on January 1, 1991, substantially revises State law regarding gifts, honoraria, and expenses related to honoraria-type events. At present, the question of what law governs a particular gift turns on when it is given and when the agreement to provide the gift is made. Section 20 of the act provides:

This act applies to all gifts, honoraria, or honorarium expenses received or paid on or after January 1, 1991, unless received pursuant to an agreement entered into prior to that date, in which event the law in effect at the time the agreement was entered into shall apply. Any report that is required with respect to a contribution given before January 1, 1991, must be made according to the requirements applicable thereto.

Under this "grandfather" provision, any gift (or "contribution," as defined under the previous law) that was received during 1990 will be treated in accordance with the law in effect prior to January 1, 1991. Similarly, any gift, etc., that will be received after January 1, 1991, pursuant to an agreement entered into prior to that date, will be treated in accordance with the law in effect prior to January 1, 1991. Any other gifts, honoraria, or honorarium expenses received or paid on or after January 1, 1991, will be governed by the provisions of Chapter 90-502.

TRIPS TAKEN DURING 1990 OR PURSUANT TO AN AGREEMENT MADE BEFORE JANUARY 1, 1991

In accordance with Chapter 90-502, these trips taken by you are governed by Section 112.3148, Florida Statutes (1989). That law requires gifts ("contribution" is the operative term used in the statute) received during 1990 to be disclosed on Commission on Ethics Form 7 no later than July 1, 1991. Gifts received during 1991 pursuant to an agreement made before January 1, 1991, should be disclosed on Form 7 no later than July 1, 1992.

In opinions CEO 90-72 and CEO 90-73, we advised that Section 112.3148 (1989) requires the disclosure of a trip provided to an official because of his public service, such as a trip paid for by a person who has or anticipates having business before the official's agency. However, we noted, a trip paid for by an official's private employer solely in connection with the duties of the official's private employment would not be reportable.

You have indicated that the inviting clients and entities do no business with the City and would not conceivably benefit from any action of the City. Therefore, with respect to trips paid for by your clients, neither your expenses nor those of your wife would be reportable, as the trips would not have been provided because of your public service. It is possible, however, that trips taken at the expense of other entities may be reportable. You indicate that these typically involve your giving a speech. Even though the inviting entity may not benefit from City action, if the speech andthe travel invitation arise out of or in connection with your position as Mayor, we are of the opinion that the trip would be related to your public service and should be reported. See CEO 90-73, Question 1. If not (for example, where the speech would relate solely to your profession), the trip would not be reportable.

For situations where your trip would be reportable, the next question is whether you also must report the fact that your wife's travel expenses were paid by the inviting entity. In answering this question, we note that Section 112.3148(2)(a) (1989) requires the official to "file a statement containing a list of all contributions received by him or on his behalf . . . ." The term "contribution" is defined in Section 112.3148 (1)(c) to mean "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."

We are of the opinion that the gift to an official's spouse of a trip accompanying the official should be considered to be a "contribution" and should be reported if its value exceeds $100. In some of these cases, the spouse's expenses may be reimbursed to the official by the inviting entity and clearly would be reportable; in other cases, the spouse's expenses may be paid directly by the entity. Even though payment for the expenses of the spouse's trip may not be given to the official directly, we consider this to be a gift given to the spouse on the public official's behalf and therefore to be reportable. Payment of the spouse's travel expenses not only saves the official or his household from having to pay for those expenses, but also represents an inducement to the official to take the trip.

TRIPS TAKEN DURING 1991 NOT PURSUANT TO AN AGREEMENT MADE BEFORE JANUARY 1, 1991

In accordance with Chapter 90-502, these trips taken by you will be governed by the requirements of Chapter 90-502. This law contains not only disclosure requirements, but also prohibitions against soliciting gifts and honoraria. With respect to trips under the new law, in order to decide what rules apply the first determination is whether the trip constitutes a "gift," an "honorarium," or "expenses related to an honorarium event," as those terms are used in the law. Secondly, we must determine who is providing the trip.

The term "gift" is defined to mean "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 his benefit or by any other means, for which equal or greater consideration is not given . . . ." Section 112.312(9)(a), Florida Statutes. [All citations in this part of the opinion are to the statutory sections as amended or created in Chapter 90-502, Laws of Florida.] The term is defined specifically to include transportation and lodging and to exclude food or beverage consumed at a single sitting or event. "Gift" also specifically excludes "[s]alary, benefits, services, fees, commissions, or expenses associated with the recipient's employment," as well as an "honorarium or an expense related to an honorarium event paid to a person or his spouse." Section 112.312(9)(b)1 and 3.

With respect to trips that are paid for by a client, we are of the opinion that the trip may or may not be a "gift," depending on whether the expenses of the trip are associated with your employment by that client. If you are not traveling in connection with the client's affairs, then the trip would not be associated with your employment and would be a gift. If you are traveling at the client's expense in order to accomplish the work you are doing for the client, then the trip would be associated with your employment and would not be a gift. Finally, there may be situations where part of the trip is business related, but the client also pays for travel that is not related to the client's affairs. In that case, the portion of expenses that relate to non-business travel would be a gift, as those expenses would not be associated with your employment.

Where the client pays for your wife's travel expenses, we are of the opinion that the payment of those expenses constitute a gift. The definition of "gift" excludes "expenses associated with the recipient's employment," but in this situation the recipient would be your wife and the travel expenses would be associated with your employment, rather than with her employment. We also conclude that the trip would be accepted by your wife on your behalf and would be paid or given to her for or on behalf of you (the donee), for the same reasons we concluded in the first part of this opinion that a trip provided to one's spouse would be reportable. The facts presented here do not raise the question of how the travel expenses of one's spouse are to be treated where one's employer mandates that the spouse participate in the trip; we do not reach this question because it is not before us.

With respect to trips paid for by nongovernmental entities which are not clients, we are of the opinion that the transportation and lodging expenses of the trip would constitute a gift unless they fall within the category of being an "honorarium or an expense related to an honorarium event" paid to you or your spouse. Those terms are used in Section 112.3149, paragraph (1)(a) of which defines an "honorarium" to mean:

a payment of money or anything of value, directly or indirectly, to a reporting individual or procurement employee, or to any other person on his behalf, as consideration for:

1. A speech, address, oration, or other oral presentation by the reporting individual or procurement employee, regardless of whether presented in person, recorded, or broadcast over the media.

2. A writing by the reporting individual or procurement employee, other than a book, which has been or is intended to be published.

The definition continues, excluding the following: payment for services related to your private employment; any ordinary payment or salary received in consideration for services related to your public duties as Mayor; reported campaign contributions; and "the payment or provision of actual and reasonable transportation, lodging, and food and beverage expenses related to the honorarium event" for you and your wife.

Generally, if the purpose of the trip is for you to give a speech and the inviting entity pays only actual and reasonable transportation, lodging, and food and beverage expenses, those expenses will be considered to be related to an honorarium event. Under such circumstances, therefore, the travel expenses of you and your wife will not constitute an "honorarium" or a "gift." We recognize that there may be instances where a brief speech by an official may be a pretext for the payment of travel expenses in an attempt to avoid the new law's restrictions on gifts, so we emphasize our intention to examine closely the facts and circumstances relating to the payment of these types of travel expenses when making the determination of whether a "gift" has been given.

The second determination relates to who (or what entity) will be paying the expenses of the trip for you and your wife. This is significant because the new law focuses particularly on political committees and committees of continuous existence (as defined in Section 106.011, Florida Statutes), on lobbyists who lobby the official's agency, and on the partners, firms, employers, and principals of such lobbyists. The term "lobbyist" is defined as follows:

'Lobbyist' means any natural person who, for compensation, seeks, or sought during the preceding 12 months, to influence the governmental decisionmaking of a reporting individual or procurement employee or his agency or seeks, or sought during the preceding 12 months, to encourage the passage, defeat, or modification of any proposal or recommendation by the reporting individual or procurement employee or his agency. With respect to an agency that has established, by rule, ordinance, or law, a registration or other designation process for persons seeking to influence decisionmaking or to encourage the passage, defeat, or modification of any proposal or recommendation by such agency or an employee or official of the agency, the term 'lobbyist' includes only a person who is required to be registered or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law or who was during the preceding 12 months required to be registered or otherwise designated as a lobbyist in accordance with such rule, ordinance, or law.

If the trip will be paid for by any of these persons or entities, you should be aware that Section 112.3148(3) prohibits you from soliciting any gift, food, or beverage from any of them, where the gift, food, or beverage is for your personal benefit, for the benefit of any member of your immediate family (your spouse, parents, children, and siblings), or for the benefit of another person who is subject to the new law. In addition, Section 112.3148(4) prohibits you and any other person on your behalf from knowingly accepting, directly or indirectly, a gift worth over $100 from any of these persons or entities.

Finally, Section 112.3149 prohibits you from knowingly accepting an honorarium from any of these persons or entities. Under Section 112.3149(5), however, any of these persons or entities may provide you, or you and your spouse, with expenses related to an honorarium event. They are required to provide you with a statement describing the expenses no later than 60 days after the event. Under Section 112.3149(6), these expenses are to be disclosed by you as part of your annual financial disclosure statement filed by July 1st for the preceding year.

Section 112.3148(6) of the new law relates to gifts given by governmental entities and direct-support organizations to governmental entities. However, as your letter does not indicate that any trips would be paid for by such entities, we do not address the application of these provisions.

Section 112.3148(8) requires you to disclose on a quarterly basis gifts in excess of $100, except for gifts from relatives, gifts which you are prohibited from accepting, and gifts otherwise required to be disclosed. Reportable gifts received during a calendar quarter should be disclosed by filing Commission on Ethics Form 9 by the last day of the following quarter with the Secretary of State. If you have received no reportable gift during a calendar quarter, the form need not be filed.

In summarizing these rules, we assume that the entities that are sponsoring your trips are not political committees, committees of continuous existence, lobbyists (as defined above), or partners, firms, employers, or principals of such lobbyists, as you have indicated that the inviting entities do no business with the City and would not conceivably benefit from any action of the City. With respect to your travel that is paid for by a client, you need not disclose the trip as a gift on the quarterly filing so long as the trip is associated with your employment by the client, as described above. However, if the trip is not associated with your employment, it should be reported on Form 9. If the client pays the expenses of your wife to travel with you, as discussed above, this gift should be disclosed on Form 9.

Trips taken by you, or by you and your wife, that are paid for by nongovernmental entities who are not clients need not be disclosed as gifts if they are "related to an honorarium event," as described above. We reach this conclusion because such expenses are exempted from the definition of "gift" and because travel expenses related to an honorarium event are required to be disclosed only if paid by a political committee, lobbyist, etc. If such trips are not "related to an honorarium event," they will constitute gifts and should be reported on Form 9.

Your question is answered accordingly.