CEO 91-57 -- October 25, 1991

GIFT DISCLOSURE

DISCLOSURE OF LEGISLATOR'S TRIPS

PAID FOR BY VARIOUS OTHER ENTITIES

To: The Honorable Art Simon, State Representative, District 116 (Miami)

SUMMARY:

Under Sections 112.3148 and 112.3149, Florida Statutes, a legislator should disclose on the quarterly gift disclosure form as a gift a trip he took to participate in an official series of conferences on NATO and the European Community, where his airfare was provided by a business publication, and where NATO provided room, board, and intercity transportation in Europe. With regard to a speaking engagement in New Orleans, his airfare, registration, and hotel room need not be disclosed as expenses related to an honorarium event because the organization paying the expenses is not a lobbyist or the principal of a lobbyist. Where the legislator represented the State on an official trade mission to Brazil, and where the Florida Department of Commerce paid for the legislator's travel expenses, the trip would constitute a gift from a department of the executive branch which had a public purpose, which he could accept but must disclose on his annual gift disclosure form for the applicable reporting period.

QUESTION 1:

Whether participation in an official conference sponsored by NATO, the European Community, and the U.S. State Department, where the costs of the trip were paid for by a business publication and NATO, is a gift or honorarium expense which must be disclosed pursuant to Chapter 112, Part III, Florida Statutes?

Your question is answered in the affirmative as their being a gift.

In your letter of inquiry, you advise that you were selected to participate in an official series of conferences on NATO and the European Community (EC), which took place in Brussels at NATO and EC Headquarters as well as at governmental offices and foreign embassies in other European cities. You further advise that the program was sponsored by NATO in conjunction with the EC and U.S. State Department. You advise that you were selected as a participant by the Southern Center for International Studies, a nonprofit educational institution located in Atlanta, Georgia, upon the recommendation of the editor of the International Business Chronicle. You also advise that the International Business Chronicle (IBC) provided round-trip air transportation between Miami and London for yourself and the editor of the publication and that IBC obtained the tickets free of charge from the airline. Your other expenses, namely room and board and intercity transportation in Europe, were provided by NATO. You relate that the trip provided a benefit in that you had an opportunity to learn about social, political, economic, and military trends in Europe and the potential for expansion of investment and trade between the EC and Florida. The trip also provided you with an opportunity to meet and interact with representatives from other southern states on issues pertaining to international trade and commerce in the southeastern United States. Finally, you relate that none of the foregoing was solicited by you, and you question whether this was a gift or constitutes expenses related to an honorarium event.

Section 112.312(9)(a), Florida Statutes, provides in relevant part:

>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.

14. Any other similar service or thing having an attributable value not already provided for in this section.

>Gift= does not include:

3. An honorarium or an expense related to an honorarium event paid to a person or his spouse.

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

With regard to honoraria, Section 112.3149, Florida Statutes, provides:

Solicitation and disclosure of honoraria.--

(1) As used in this section:

(a) 'Honorarium' means 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 term "honorarium" does not include the payment for services related to employment held outside the reporting individual's or procurement employee's public position which resulted in the person becoming a reporting individual or procurement employee, any ordinary payment or salary received in consideration for services related to the reporting individual's or procurement employee's public duties, a campaign contribution reported pursuant to chapter 106, or the payment or provision of actual and reasonable transportation, lodging, and food and beverage expenses related to the honorarium event for a reporting individual or procurement employee and spouse.

Section 112.3149(5) allows lobbyists and certain others to pay an official's expenses related to an honorarium event and requires them to provide the official with a statement within 60 days after the event describing the expenses provided each day and the total value of the expenses provided for the honorarium event. Pursuant to Section 112.3149(6), the official is required to disclose these honorarium event related payments by July 1 of each year and attach to his disclosure form a copy of each statement received by him during the preceding calendar year.

Concerning your participation in the NATO and EC conference, there is no indication in your letter of inquiry that you made any speech or oral presentation at this conference. Therefore, we conclude that your travel and related expenses to participate in this event constituted gifts, not expenses related to an honorarium event.

Having determined that this trip was a gift, we must next consider whether this trip was a gift which you could accept, and what, if any, reporting requirements are applicable. Section 112.3148(4), Florida Statutes, provides:

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 provision prohibits a reporting individual from accepting a gift valued in excess of $100 from a lobbyist who lobbies the reporting individual's agency or from the principal of such a lobbyist. We are advised that neither International Business Chronicle nor NATO are lobbyists or principals of lobbyists who lobby the Florida Legislature. Accordingly, there appears to be no prohibition against accepting the round-trip airfare which IBC provided to you, nor any prohibition against your accepting the room, board, and intercity transportation you received from NATO while in Europe for the conference.

Pursuant to Section 112.3148(8)(a), Florida Statutes, you are required to disclose the receipt of these gifts, if they exceeded $100 in value, on the last day of the calendar quarter that follows the calendar quarter in which they were received. This disclosure should be made on our Form 9, Quarterly Gift Disclosure, with the Secretary of State.

In valuing the round-trip airline ticket you received from IBC, you advise that IBC received your ticket free of charge from the airline and that you and the IBC editor flew on a "standby/space available" basis. Section 112.3148(7), Florida Statutes, describes the principles to be applied in valuing gifts and provides as a general rule that the value of a gift is to be determined using actual cost to the donor. However, Section 112.3148(7)(d) specifically provides:

Transportation shall be valued on a round-trip basis unless only one-way transportation is provided. Round-trip transportation expenses shall be considered a single gift. Transportation provided in a private conveyance shall be given the same value as transportation provided in a comparable commercial conveyance.

Given the emphasis and specificity in this provision on valuing transportation at commercial rates, we are of the opinion that transportation provided to an official should be valued at commercial rates regardless of the actual cost to the donor. Although your ticket was provided free of charge to IBC, we are of the view that you should disclose this item as a gift from IBC and that it should be valued at the full cost of the fare for a comparable flight pursuant to Section 112.3148(7)(d).

With regard to the expenses provided by NATO, transportation would be valued in accordance with Section 112.3148(7)(d), as provided above. Lodging on consecutive days would be valued as a single gift pursuant to Section 112.3148(7)(e). Any meals which were provided to you by NATO would not need to be disclosed as a gift as long as they were consumed at a single sitting or event.

Accordingly, your participation in this official conference should be disclosed as a gift for purposes of Section 112.3148, Florida Statutes.

QUESTION 2:

Whether a speaking engagement in New Orleans before the Southern Growth Policies Board constituted an honorarium event or a gift?

Your question is answered in the affirmative as to an honorarium event.

In your letter of inquiry and in supplemental information you provided to our staff, you advise that you traveled to New Orleans on May 23, 1991, for a speaking engagement before the Southern Growth Policies Board, where you served as both moderator and commentator for an hour-long session entitled "State Initiatives in Latin America." Specifically, you state that you made a lengthy presentation on Florida's recently enacted legislation pertaining to the promotion of international trade and commerce. You advise that the primary focus of this meeting was to evaluate the potential impact of the "Enterprise of the Americas" legislation on the economies of the southeastern states. You also advise that you attended and participated in all of the other scheduled meetings and question and answer sessions held on Friday, May 24th, before returning to Miami.

We are advised that the Southern Growth Policies Board, a publicly supported tax-exempt organization, paid for your airfare, registration, and hotel room, and that you were in New Orleans for less than 24 hours. You question whether your receipt of these expenses should be disclosed under the gift provisions of Section 112.3148, or the honorarium provisions contained in Section 112.3149, Florida Statutes.

As indicated in our response to Question 1, the definition of "gift" excludes expenses related to an honorarium event. Section 112.312(9)(b)3, Florida Statutes. The definition of "honorarium" contained in Section 112.3149(1)(a), defines the term as a "speech, address, oration, or other oral presentation . . . ." You have not indicated that the Southern Growth Policies Board is a political committee as defined by Chapter 106, Florida Statutes. In checking with the Legislative Lobbyist Registration Office, we are advised that this entity is not registered as a principal who lobbies the Legislature. Therefore, there is no indication that the Southern Growth Policies Board would be an entity from which you would be prohibited from accepting an honorarium pursuant to Section 112.3149(3), Florida Statutes.

Moreover, Section 112.3149(5), Florida Statutes, allows you as a reporting individual to accept expenses related to an honorarium event, even from entities which are prohibited from providing an honorarium to you. We interpret Section 112.3149(1)(a)2, Florida Statutes, as limiting what constitutes an expense related to an honorarium event to include the payment or provision of actual and reasonable transportation, lodging, and food and beverage expenses related to the honorarium event. Transportation expenses between Miami and New Orleans would fall under this provision, as would the one night of lodging you received from the Southern Growth Policies Board. Therefore, you may accept these expenses. However, because the Southern Growth Policies Board is not one of the persons or entities prohibited from giving you an honorarium, you are not required to report these expenses on the annual gift and honorarium event expenses disclosure form you will file by July 1 of next year. Section 112.3149(6), Florida Statutes.

With regard to the conference registration fee provided to you by the Southern Growth Policies Board, we are advised that this $75 fee was assessed against participants to cover the costs of their meals and conference materials. We are of the view that this expense would be considered to be an "expense related to an honorarium event," which is specifically excluded from the definition of a "gift" in Section 112.312(9)(b)3, Florida Statutes. It would not need to be disclosed as an honorarium event related expenses because it was not provided by a lobbyist or lobbying entity. Also, even if it were a "gift," it would not be reportable because its value did not exceed $100.

Question 2 is answered accordingly.

QUESTION 3:

Whether your participation in an official protocol mission to Brazil on behalf of the State of Florida constituted an honorarium event or official State business which would be non-reportable?

This trip would constitute a gift from a department of the executive branch, which had a public purpose.

You advise that you participated in an official protocol mission to Sao Paulo, Brazil, on behalf of the State of Florida at the request of the Governor and the Secretary of the Florida Department of Commerce, where you opened Florida's new foreign office. In addition to inspecting the new office, you accompanied an official trade mission under the auspices of the Department of Commerce and met with Brazilian and American business leaders, bankers, government officials, and educators. You also met with trade and tourism representatives working for Florida in Brazil, participated in various official briefings and press conferences on behalf of the State of Florida, and represented the State in a protocol meeting with the Governor of the State of Sao Paulo. You advise that the benefit of the trip was to provide oversight of official Department of Commerce programs in Brazil and that it provided you with an opportunity to evaluate the efficacy of new trade promotion initiatives in Sao Paulo. You further advise that you were asked to lead this mission due to your chairmanship of the House Commerce Committee and your fluency in Portuguese. You relate that the Department of Commerce provided your hotel accommodations, meals, and ground transportation, subject to State per diem restrictions. Your round-trip airfare was provided complimentary to the Department by the airline, as a group of tickets were purchased for the trade mission and the airline provided the Department with several free tickets. You question whether this trip constituted an honorarium or would be classified as non-reportable official State business.

We can find no basis to conclude that this trip constituted an honorarium event. There is no indication that you made any speech, address, oration, or other oral presentation while on the trip, although it is clear that you met with Brazilian and American business and political leaders while in Sao Paulo. We do not interpret the honorarium provisions to cover situations where the reporting official participates in official briefings or meetings.

The issue, then, is whether this trip would be reportable as a gift or would constitute official State business which requires no disclosure other than the travel vouchers filed pursuant to Section 112.061, Florida Statutes. Notwithstanding the "quid pro quo" concept contained in the definition of "gift" in Section 112.312(9)(a), Florida Statutes, we are of the view that at a minimum, disclosure should be the goal for the reporting official who receives any of the listed items contained in the definition of "gift." Therefore, in the absence of clear evidence to the contrary, we are going to assume when we are rendering opinions on gifts that the reporting individual has not given "equal or greater consideration" in exchange for the gift. We adopt this view because of our reluctance to issue opinions valuing the reporting individual's services, which is extremely difficult to do in the context of an advisory opinion, as well as our belief that the public is better served by disclosure of the receipt of gifts by reporting individuals. We also believe that this view is in accord with the legislative intent behind the enactment of Chapter 90-502, Laws of Florida, as amended, where it is stated in the enacting language that:

...the Legislature believes that it is in the public interest to have strict, clear, and enforceable standards concerning the ethical conduct of all public officials, and

... the Legislature believes that it is in the public interest to go beyond disclosure requirements and to prohibit certain individuals from giving gifts to public officers and employees, ... .

We believe that the best way that we can render meaningful advisory opinions while effectuating the legislative intent behind the enactment of this exceedingly complex statute is to assume, in most instances, that the item is a "gift" if it is included in the list contained in Section 112.312(9)(a), Florida Statutes. If it is included in that list, then our next question will be whether it is one that can be accepted by the reporting individual.

In this situation, we are of the view that your trip to Sao Paulo, Brazil, was a "gift" for purposes of Section 112.312(9)(a), Florida Statutes. Therefore, we turn to the issue of whether it could have been accepted by you, and if so, what reporting requirements are applicable.

Section 112.3148(6)(b), Florida Statutes, provides:

Notwithstanding the provisions of subsection (4), a reporting individual or procurement employee may accept a gift having a value in excess of $100 from an entity of the legislative or judicial branch, a department or commission of the executive branch, a county, a municipality, or a school board if a public purpose can be shown for the gift; and a reporting individual or procurement employee who is an officer or employee of a governmental entity supported by a direct-support organization specifically authorized by law to support such governmental entity may accept such a gift from such direct-support organization.

It is very clear to us that there was a public purpose behind the trip to Brazil provided to you by the Florida Department of Commerce. In addition to the information you have provided to us, you also state that the trip was in furtherance of an important public purpose for the State of Florida. In support of this contention, you relate that Brazil has recently become the number one trading partner with the State of Florida and, given the effect of liberalized trade policies, there is a great potential for further expansion of this economic activity. Additionally, Brazil has become a primary new source of foreign investment in Florida, especially Dade County. Likewise, Brazil has emerged as the primary source of new foreign tourism to Florida, and finally, the economy of the State of Sao Paulo is greater than that of either Argentina or Mexico. Based upon these factors, the Governor and the Legislature agreed to the establishment of a Trade and Tourism Promotion Office in Sao Paulo. In this regard, the Department of Commerce requested certain public officials to actively participate in the official opening of the new foreign office. The participation of these officials assured that the formal opening would be given the widest possible attention in Brazil. In light of the foregoing, we agree that a public purpose was served by this gift to you from the Department of Commerce.

As your voucher for reimbursement of traveling expenses indicates that you received $527.97 for your per diem and lodging expenses while on the trip, it is clear that the value of this trip exceeded $100, and it therefore must be reported as a gift from the Department of Commerce on the annual gift reporting form required under Section 112.3148(6)(d) for the applicable reporting period. However, where you received reimbursement for actual meal expenses, we would not consider that to be a gift because it presumably paid for your food or beverage consumed at a single sitting. Section 112.312(9)(b)6, Florida Statutes. Therefore, these meals need not be listed as gifts.

With regard to your travel, you have advised that Varig Airlines provided the Department of Commerce with several complimentary tickets and that you traveled using one of these free tickets. Under these circumstances, we also view this free airfare as a gift to you from the Department of Commerce. In disclosing this item, it should be valued at the full cost of the fare for a comparable flight pursuant to Section 112.3148(7)(d), Florida Statutes.

Your inquiry is answered accordingly.