CEO 91-71 -- December 6, 1991

GIFT ACCEPTANCE / DISCLOSURE

COUNTY COMMISSIONER RECALL PETITION DEFENDED

WITHOUT CHARGE BY ATTORNEY

To: Beth A. Sullivan, Assistant County Attorney for Charlotte County (Port Charlotte)

SUMMARY:

The provision of legal services at no charge by the partner of an attorney who lobbies a county commission, in the successful defense of a recall petition filed against a member of the commission, is not prohibited by the gift law. Because the member would be entitled to public reimbursement for the cost of the services, the services constitute a gift to a governmental entity allowed under Sections 112.3148(4) and 112.3148(5)(a), Florida Statutes. CEO 91-21 is referenced.

QUESTION:

Does the successful defense at no charge of a recall petition filed against a member of a board of county commissioners, provided by an attorney whose partner or firm appears before the board as a "lobbyist," constitute a prohibited gift?

Your question is answered in the negative.

In your letter of inquiry and subsequent communication with our staff, you advise that William D. Noel serves as a member of the Charlotte County Commission. You further advise that, after January 1, 1991, the member hired an attorney to defend his interests against a recall petition directed at him. You also relate that the attorneys for the Commissioner began their representation on February 21, 1991. A judge found that the petition was invalid on its face and temporarily and permanently enjoined the petitioners from taking any further action to process or validate the petition. After the injunction issued, the attorney sued the petitioners and was awarded a cost judgment in the amount of $1,912.50 for court costs, including those associated with hiring an expert witness.

The legal services provided by the attorney exceeded $100 in value, you relate. However, the attorney advised the member that there would be no charge for his services (that they were rendered "pro bono"). Therefore, as you relate further, although the member received no "cash," he was nevertheless relieved of a valid obligation to the attorney.

The attorney did not appear before the Board within 12 months prior to his representation of the member. However, a partner in the attorney's firm (with whom the attorney was a law partner at the time of the services to the member) frequently practices before the Board and did appear before the Board within a year of the attorney's representation of the member. The County had no system of lobbyist registration or designation.

The gift law, a portion of the Code of Ethics for Public Officers and Employees, provides in relevant part:

A reporting individual or procurement employee or any other person on his behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or directly or indirectly on behalf of the partner, firm, employer, or principal of a lobbyist, if he knows or reasonably believes that the gift has a value in excess of $100; however, such a gift may be accepted by such person on behalf of a governmental entity or a charitable organization. If the gift is accepted on behalf of a governmental entity or charitable organization, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for the transfer of custody and ownership of the gift. [Section 112.3148(4), Florida Statutes.]

A political committee or a committee of continuous existence, as defined in s. 106.011; a lobbyist who lobbies a reporting individual's or procurement employee's agency; the partner, firm, employer, or principal of a lobbyist; or another on behalf of the lobbyist or partner, firm, principal, or employer of the lobbyist is prohibited from giving, either directly or indirectly, a gift that has a value in excess of $100 to the reporting individual or procurement employee or any other person on his behalf; however, such person may give a gift having a value in excess of $100 to a reporting individual or procurement employee if the gift is intended to be transferred to a governmental entity or a charitable organization. [Section 112.3148(5)(a), Florida Statutes.]

"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. [Section 112.3148(2)(b), Florida Statutes.]

"Reporting individual" means any individual who is required by law, pursuant to s. 8, Art. II of the State Constitution or s. 112.3145, to file full or limited public disclosure of his financial interests. [Section 112.3148(2)(d), Florida Statutes.]

"Gift," for purposes of ethics in government and financial disclosure required by law, means 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, including:

12. Services provided by persons pursuant to a professional license or certificate. [Section 112.312(12)(a), Florida Statutes.]

We find that the provision of the legal services would constitute a gift within the meaning of the above statutory sections as "services provided by persons pursuant to a professional license or certificate." Therefore, the services cannot be accepted unless the gift law otherwise allows for acceptance.

In Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla. 1990), the Supreme Court of Florida held that city council members who successfully defended a recall petition were entitled to reimbursement of their legal fees from the city. Thus, in your situation, the legal fees incurred by the member can be said to be owed by the County. It therefore follows that the providing of the services without charge is a gift to the County--a governmental entity. As such, the services may be given and accepted, under the language of the latter parts of Sections 112.3148(4) and 112.3148(5)(a). Further, due to language in Thornber stating that "[o]fficials should not have to incur personal expenses [emphasis added] to ensure that a recall committee follows the proper procedures," we find that the waiver of the costs portion of the representation by the attorney is also a permitted gift to the County. We view the waiver of legal fees and costs for the benefit of the County to be similar to the situation in CEO 91-21 where we approved a county supervisor of elections taking a trip at public expense to inspect voting equipment made by a particular manufacturer, with the manufacturer then reimbursing the county for the expenses of the trip.

We are reluctant to get involved in matters regarding the procedures to be used by a county commission in conducting its business. Therefore, we express no opinion on whether the entire board should vote to accept the legal services or whether the member alone can accept them for the County.

Accordingly, we find that the provision, without charge, of legal services in defense of a recall petition is not prohibited by the gift law. Since the gift law contains no requirement of disclosure of gifts to governmental entities, neither the Commissioner nor the attorney is required to disclose the legal services as a gift.