CEO 91-21 -- April 19, 1991

GIFT ACCEPTANCE

COUNTY SUPERVISOR OF ELECTIONS ACCEPTING MEALS,TRANSPORTATION, AND LODGING FROM MANUFACTURER OF VOTING EQUIPMENT TO INSPECT FACTORY AND PRODUCTS OF MANUFACTURER

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

SUMMARY:

A county supervisor of elections would not be prohibited from accepting meals, but would be prohibited from accepting transportation and lodging valued in excess of $100, from a manufacturer of voting equipment for the purpose of visiting the manufacturer's factory to inspect the factory and examine voting equipment which might be purchased for use in the supervisor's county. The meals would be exempt from the definition of "gift" under Section 112.312(9), Florida Statutes. While acceptance by the supervisor of transportation and lodging would be prohibited by Section 112.3148(4), Florida Statutes, if the manufacturer was a principal or employer of a lobbyist, language of that section and of Section 112.3148(5), Florida Statutes, would allow the manufacturer to reimburse the local governmental body for the expenses of the trip.

QUESTION:

Does the Code of Ethics for Public Officers and Employees prohibit the acceptance by a supervisor of elections of transportation, lodging, and meals provided by an out-of-state manufacturer of voting equipment for the purpose of inspecting the manufacturer's factory and examining the manufacturer's products for potential public purchase?

Your question is answered in the affirmative, subject to the exceptions and conditions discussed below.

In your two letters of inquiry, you advise that Pat Hollaran serves as the Supervisor of Elections of Okaloosa County. You further advise that the County seeks to acquire a new voting system. A manufacturer of voting system equipment has a factory in California. The Supervisor will be in California on other business, and the manufacturer has requested that the Supervisor inspect its factory and examine its products while in California. The manufacturer has offered to provide transportation, lodging, and meals for the Supervisor's travel and accommodation between where the Supervisor otherwise would be in California and the manufacturer's factory. The Supervisor believes the factory visit would be in the interest of her job as Supervisor and in the interest of the citizens of Okaloosa County. The visit is one which could be billed to the County and which would be paid by the County as an appropriate expense for a public purpose.

Section 112.3148(4), Florida Statutes, as amended by Chapter 90-502, Laws of Florida, 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.

This section would prohibit acceptance by the Supervisor of a gift valued in excess of $100 from a lobbyist or a principal or employer of a lobbyist, unless accepted on behalf of a governmental entity or charitable organization.

Section 112.3148(2), Florida Statutes, as amended, provides in relevant part:

(b) '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.

(c) 'Person' includes individuals, firms, associations, joint ventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations.

(d) '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 112.312(9), Florida Statutes, as amended, provides in relevant part:

(a) '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:

7. Transportation, lodging, or parking.

8. Food or beverage, other than that consumed at a single sitting or event.

(b) 'Gift' does not include:

1. Salary, benefits, services, fees, commissions, or expenses associated with the recipient's employment.

6. Food or beverage consumed at a single sitting or event.

Since meals, by their nature, are consumed at single sittings or events, they fall outside the above definition of "gift" and therefore could be accepted by the Supervisor. However, transportation and lodging are not excluded from the definition of "gift" under the above language. While it may be argued that they are "expenses associated with the recipient's employment," we interpret this phrase to mean expenses that are paid or furnished by the employer of the officeholder, rather than those paid or furnished by private parties who are unrelated to the employment of the officer. Any other construction of that language would result in private interests providing virtually unlimited trips and accommodations to public officials and employees under the guise of "fact-finding" or "product evaluation."

Accordingly, if the manufacturer has at the time of the gift, or had during the twelve months preceding the gift, a compensated person seeking to influence the governmental decisionmaking of the Supervisor or her office, or a person seeking to encourage the passage, defeat, or modification of any proposal or recommendation by the Supervisor or the Supervisor's office, the manufacturer is the principal or employer of a lobbyist from whom the Supervisor cannot accept a gift valued in excess of $100, unless other provisions of the Code permit acceptance of the gift. See CEO 83-58 for a discussion of the office of a supervisor of elections being the agency of the supervisor.

Section 112.3148(5), Florida Statutes, as amended, provides:

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.

This section, when buttressed by the language of Section 112.3148(4), would permit the Supervisor to accept gifts with values in excess of $100 if the gifts were intended to be transferred to a governmental entity. In the situation before us, it would be permissible for the Supervisor to make the trip on public funds and, afterward, for the manufacturer to give the Supervisor a check in the amount of the cost of the trip, with the Supervisor then turning the check over to the local body which bore the expenses of the trip.

Your question is answered accordingly.