CEO 92-15 -- April 24, 1992

GIFT ACCEPTANCE

FORMER EMPLOYEE OF BOARD OF REGENTS

RECEIVING GIFT UPON RETIREMENT

To: Mr. Forrest M. Kelley. Jr., Former Director, Capital Programs, Board of Regents (Tallahassee)

SUMMARY:

Where a former employee of the Board of Regents was honored at his retirement dinner in November, 1990 with a trip to Hawaii valued at $3,540, where contributions towards the gift were obtained from professional colleagues he had worked with during his career with the State which spanned 32 years, and where the employee retired on February 1, 1991 but has not yet accepted the gift, the "grandfather" provision contained in Section 20, Chapter 90-502, Laws of Florida, would be applicable. Pursuant to that provision, any gift received after January 1, 1991, pursuant to an agreement entered into prior to that date, as is the case here, would be treated in accordance with the law in effect prior to January 1, 1991. Under the facts presented, acceptance of the trip by the former employee contravenes neither Section 112.313(2) nor 112.313(4), Florida Statutes. CEO's 91-14 and 86-19 are referenced.

QUESTION:

May you, the former director of Capital Programs for the Board of Regents, accept a trip for two to Hawaii, presented to you at a retirement dinner in November, 1990?

Your question is answered in the affirmative.

In your letter of inquiry and in subsequent information provided to our staff, we are advised that you are an architect and formerly were employed by the Board of Regents as Director of Capital Programs. After 32 years of employment with the Board of Regents, you retired on February 1, 1991. In your former position, you participated in or made recommendations concerning appointments of architects and engineers for construction projects at State universities. You advise that you were responsible for the receipt of some bids for construction contracts and the recommendations ofaward of those contracts and for recommendations of award on contracts for which bids had been received by others. You also recommended procedures for the entire State University System. You advise that you were affiliated with professional societies such as the Florida Association of the American Institute of Architects (FAAIA) and worked with citizens advisory committees recruited by architects, engineers, and contractors engaged in private practice.

In November 1990, colleagues from the Board of Regents' staff, in conjunction with the FAAIA, honored you with a retirement dinner. We are advised by the Executive Director of the FAAIA that the Association sent out several hundred invitations to former and current members of the Board of Regents, former and current chancellors of the State University System, agency staff, architects and allied associations, the Governor and Cabinet, and other persons with whom you had worked during your lengthy career. Invitees were asked to respond to the invitation and also were asked if they wished to contribute toward a gift which would be presented to you at the dinner. We are advised that between 75 and 100 persons did contribute toward a gift, with the amount of individual contributions varying between $15 and $635. At the dinner, you were presented with a vacation trip for two to Hawaii, valued at $3,540. However, we are advised that you have not yet taken this trip and, instead, the FAAIA continues to hold the funds for you. Finally, you advise that you officially retired from your position with the Board of Regents on February 1, 1991.

As you are aware, in November, 1990, the Legislature passed extensive revisions to the gift laws. Thus, the question of whether you may accept the trip to Hawaii depends on when the gift was provided. Chapter 90-502, Laws of Florida, which subsequently has been codified in Chapter 112, Part III, Florida Statutes, became law on January 1, 1991. Section 20 of the act provided:

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 would be treated in accordance with the law in effect prior to January 1, 1991. Similarly, any gift that is received after January 1, 1991, pursuant to an agreement entered into prior to that date, would 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, would be governed by the provisions of Chapter 90-502, Laws of Florida.

In CEO 91-14, we advised a State Representative that this "grandfather" provision would be applicable to the receipt and disclosure of free billboard space provided by a national, outdoor advertising company, inasmuch at this "gift" was provided pursuant to an agreement that was entered into prior to January 1, 1991.

Similarly, here we are of the view that under the unique circumstances presented, your trip to Hawaii is governed by Section 20, Chapter 90-502, Laws of Florida. Prior to January 1, 1991, the only statutory provisions which restricted acceptance of gifts by public officers and employees were Sections 112.313(2) and 112.313(4), Florida Statutes, which provide:

SOLICITATION OR ACCEPTANCE OF GIFTS.--No public officer, employee of an agency, or candidate for nomination or election shall solicit or accept anything of value to the recipient, including a gift, loan, reward, promise of future employment, favor, or service, based upon any understanding that the vote, official action, or judgment of the public officer, employee, or candidate would be influenced thereby.

UNAUTHORIZED COMPENSATION.--No public officer or employee of an agency or his spouse or minor child shall, at any time, accept any compensation, payment, or thing of value when such public officer or employee knows, or, with the exercise of reasonable care, should know, that it was given to influence a vote or other action in which the officer or employee was expected to participate in his official capacity.

Section 112.313(2), Florida Statutes, prohibits public officers and employees from soliciting or accepting anything of value based upon an understanding that their official actions would be influenced as a result. Section 112.313(4) prohibits a public officer or employee from accepting anything of value when he knows, or should know with the exercise of reasonable care, that it was given to influence actions in which the officer or employee was expected to participate in his official capacity. See CEO 86-19, where we opined that neither of these provisions were violated when a city commissioner won an all-expense paid trip to two to London in a drawing held by a local developer.

In your situation, there is nothing to suggest that you were given this expensive gift to influence your official actions as Director of Capital Programs for the Board of Regents. Clearly, you no longer are in a position to influence any decision which may be contemplated by the Board of Regents with respect to a capital project at a State university. While we recognize that gifts of this magnitude may be inappropriate under certain circumstances, and, in fact, may be prohibited under the current gift law, we are satisfied that under the limited factual situation now before us, there is no prohibition to acceptance of the generous gesture bestowed upon you by your professional friends and colleagues after 32 years of service to the State of Florida.

Accordingly, you may accept the trip for two to Hawaii valued at $3,540, which was offered to you at your November, 1990 retirement dinner.