CEO 91-14 -- March 7, 1991

GIFT DISCLOSURE

DISCLOSURE OF USE OF BILLBOARD PROVIDED TO STATE REPRESENTATIVE TO ADVERTISE DISTRICT OFFICE

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

SUMMARY:

A State Representative is required to disclose as a gift on Commission on Ethics Form 7 the free use of billboard space provided by a national, outdoor advertising company on which is placed a sign informing citizens that their State Representative is available to help with their questions or concerns. Under Chapter 90-502, Laws of Florida, any gift that was received during 1990 will be treated in accordance with the law in effect prior to January 1, 1991. Also, any gift received after January 1, 1991, pursuant to an agreement entered into prior to that date, as is the case here, will be treated in accordance with the law in effect prior to January 1, 1991.

Section 112.3148, Florida Statutes (1989), contains the law applicable before January 1, 1991. As the donation of billboard space by the advertising company would be related to the Representative's public service, it should be reported on Form 7 for each period of time when the value of having the sign on a billboard at a particular location exceeded $100, based upon the rate normally charged by the company for its billboard space.

QUESTION:

Are you, a State Representative, required to disclose as a gift the free use of billboard space provided by a national, outdoor advertising company on which is placed a sign informing citizens that their State Representative is available to help with their questions or concerns?

In your letter of inquiry and a telephone conversation with our staff, you have advised that you serve as a member of the Florida House of Representatives. You also have advised that in1990 a national, outdoor advertising company offered to run a nonpolitical public service announcement for your district office on a space available basis (in other words, on its unbought or unused spaces) if you would pay for the sign to be painted. When the space on the billboard where your sign was located would be sold, the sign would be moved to a vacant location until that space was sold, and so forth. Your office paid for the painting of a sign informing citizens that their State Representative is available to help with questions or concerns, and the company placed it at one billboard location. During the last half of 1990 the sign was taken down and placed at a second location, where it currently remains.

You advise that this practice has increased activity in your office, as constituents call in more frequently to get answers to questions or to ask for help with a problem. The advertising company is not registered as being represented before the Legislature, you advise, and the company has not lobbied you within the preceding 12 months. You question whether the use of the billboard space should be disclosed as a gift, as this is a service directly related to your office and not to you, personally.

Due to the recent revisions of the gift law by the Legislature at the end of 1990, the law applicable to your question depends on when the use of the billboards was offered and provided. Chapter 90-502, Laws of Florida, which became law on January 1, 1991, substantially revises State law regarding gifts. 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 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.

Therefore, the use of billboard space during 1990 will be treated in accordance with the law in effect prior to January 1, 1991. As it appears that any use of the company's billboard space for your district office sign will be pursuant to an agreement entered into prior to that date, the use of this space after January 1, 1991, also will be treated in accordance with the law in effect prior to January 1, 1991, and we need not consider the impact of the new gift law. However, because the company's offer involves advertising the services of your public office, we are of the opinion that the current agreement would be grandfathered in only during your present term of office. If you are reelected and the company repeats its offer for the use of billboard space, we suggest that you seek another opinion under the law in effect at that time.

Section 112.3148, Florida Statutes (1989), contains the law applicable before January 1, 1991. It 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.

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."

In opinion CEO 90-72, 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, given that the purpose of the law is to compel disclosure of contributions that might tend to influence an official, we concluded that trips that are not related to the official's public service need not be reported.

In CEO 90-73 (question 1), we advised that a State Representative should disclose a trip exceeding $100 in value that is paid for by a private entity, where there is a public purpose served by the Representative's going on the trip. We noted that 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 the Representative's public service in the sense of having been provided to him because of his public service. As the question involved trips for which a public purpose would be served by the Representative's attendance, we concluded that the trips would be related to his public service and therefore should be reported.

Similarly, we conclude here that the donation of billboard space by the advertising company would be related to your public service. As you have indicated, the use of billboard space is directly related to your office.

Accordingly, we find that the donation of billboard space should be reported on Form 7 for each period of time when the value of having your sign on a billboard at a particular location exceeded $100. As there should be an ascertainable rate normally charged by the company for its billboard space, that rate should be used to calculate the value of the space.