CEO 93-27 -- September 2, 1993

GIFT ACCEPTANCE AND DISCLOSURE

SHERIFFS ASSOCIATION SOLICITING CONFERENCE SPONSORS

AND GIFTS FROM ENTITIES DOING BUSINESS WITH SHERIFFS

To: Mr. Mark Herron, Attorney for Florida Sheriffs Association (Tallahassee)

SUMMARY:

Subsection 112.3148(3), Florida Statutes, does not prohibit the employees of the Florida Sheriffs Association from soliciting money to pay for food and beverages, and other items, from lobbyists who lobby sheriffs and their departments for conferences held by the Florida Sheriffs Association. Subsection 112.3148(3) only prohibits the solicitation of lobbyists by reporting individuals and procurement employees, and employees of the Florida Sheriffs Association are neither. Subsection 112.3148(4), Florida Statutes, would not prohibit sheriffs from accepting tokens of insignificant value from lobbyists displaying goods or services at exhibitions held during the conference; nor would sheriffs be prohibited from consuming food and beverages paid for, in part, by lobbyists. However, where a lobbyist has provided a door prize with a value in excess of $100, that gift would be considered an indirect gift pursuant to Subsection 112.3148(4), Florida Statutes, and Rule 34-13.310(6), Florida Administrative Code, and a sheriff would be prohibited from accepting it. A sheriff could, however, accept a door prize on behalf of a governmental entity or charitable organization. CEO 91-69 is referenced.

QUESTION 1:

Does Subsection 112.3148(3), Florida Statutes, prohibit employees of the Florida Sheriffs Association from soliciting gifts relating to conferences put on by the Florida Sheriffs Association from lobbyists who lobby sheriffs or their agencies?

Your question is answered in the negative, based upon the specific factual situation presented.

In your letter of inquiry, you advise that the Florida Sheriffs Association seeks this opinion on behalf of its members in order to establish the standard of public duty for the sheriffs of this state. The Florida Sheriffs Association (FSA) is a not-for-profit corporation organized under the laws of the State of Florida and is also a Section 501(c)(3) organization under the Internal Revenue Code. Each of Florida's sheriffs is a member of the FSA. Each sheriff's office pays an annual fee for membership in the FSA which, you relate, is a percentage of the annual salary of the sheriff for that particular county. Further, you advise that the expenditure of public monies for this purpose is authorized by law and that such expenditure is deemed to be for a "public purpose." Additionally, FSA has other classes of members: individual, corporate, and law enforcement; annual dues are based on the class of membership.

You advise that the FSA conducts two major conferences each year: its annual conference, which is held in the summer, and its mid-winter conference, which generally is held just prior to the legislative session. To help offset the costs of these conferences, the FSA solicits conference sponsors. Sponsors are generally individuals or corporate entities who desire to sell goods or services to law enforcement agencies. In return for a monetary contribution to the FSA, the sponsor may establish an exhibit at the conference site and is recognized there on a "sponsor board." Sponsors also are recognized at certain functions during the conference. At the conference site, participants are encouraged to visit the exhibit area and view the products on display. Sponsors may opt to give away pens, notepads, decals, stickers, pins, and other similar items to any person touring the exhibit area. You believe that these items have a de minimis value.

Additionally, some entities are solicited by the FSA to sponsor a portion of the cost of a meal or other social function at the conference. These sponsors are recognized by announcement during the meal or function.

Also, certain persons or entities are solicited by the FSA to donate a product or service to the FSA to be used as a "door prize" for participants at the conference. Although the products or services are not intended for receipt by any particular individual, generally only sheriffs are eligible to participate in the drawing for the door prizes, the value of which may exceed $100. On occasion, the product or service awarded is an item that, in reality, is a gift for the sheriff's office, such as a blue/red light bar for the top of a patrol car. In other cases, you relate, the door prize is of a more personal nature, such as a golf bag. Finally, you advise that all solicitations are made by the FSA, and all donations are made to the FSA.

The provision applicable to solicitations of gifts is Subsection 112.3148(3), Florida Statutes, which is as follows:

A reporting individual or procurement employee is prohibited from soliciting any gift, food, or beverage 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 the partner, firm, employer, or principal of such lobbyist, where such gift, food, or beverage is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.

Subsection 112.3148(2)(b) defines a "lobbyist" to mean

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. . . . .

Section 112.3148(3) prohibits reporting individuals and procurement employees from soliciting gifts, food, and beverage from lobbyists who lobby them or their agencies. Sheriffs are "reporting individuals" for purposes of this provision and, it appears, the conference sponsors generally would be considered "lobbyists" who lobby sheriffs or their departments.

The question, then, is whether the solicitation of gifts from sheriffs' lobbyists by FSA staff is prohibited under Subsection 112.3148(3). Clearly, if a sheriff asked a lobbyist to provide meals or beverages, or any other gift, for the personal benefit of him and other sheriffs, then that solicitation would be prohibited by Subsection 112.3148(3), Florida Statutes. However, because you have represented that FSA staff alone does the soliciting, and where presumably the sheriff acting as host or his department's employees have no involvement in this process, we cannot conclude that the solicitation by FSA staff violates Subsection 112.3148(3), Florida Statutes, since the prohibition against soliciting applies only to reporting individuals and procurement employees and does not prohibit indirect solicitations. Therefore, since FSA staff are neither reporting individuals nor procurement employees for purposes of the gift law, solicitations by them do not violate Subsection 112.3148(3), Florida Statutes.

Accordingly, because Subsection 112.3148(3), Florida Statutes, does not prohibit indirect solicitations, the solicitation of lobbyists by FSA staff to allow lobbyists to participate as exhibitors at an FSA conference, to pay for a portion of the cost of a meal or other social function at a conference, or to provide a door prize intended for receipt by a sheriff is not prohibited by Subsection 112.3148(3), Florida Statutes. This is not to say that we approve of the practice, however, but only that the statute, as drafted, does not prohibit it.

QUESTION 2:

Does Subsection 112.3148(4), Florida Statutes, prohibit a sheriff from accepting certain items at conferences held by the Florida Sheriffs Association, where the items are provided either directly or indirectly by lobbyists who lobby the sheriff or his agency?

Question 2 is answered in the negative for certain gifts given by the lobbyists and in the affirmative for others.

Subsection 112.3148(4), Florida Statutes, states:

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 prohibits reporting individuals from accepting, directly or indirectly, a gift with a value in excess of $100 from a lobbyist who lobbies the reporting individual or his agency, unless the gift is accepted on behalf of a governmental entity or charitable organization.

In examining the various items provided by the lobbyists, those items given away by exhibitors displaying goods or services at the conferences would be considered "gifts" pursuant to the definition contained in Section 112.312(12), Florida Statutes. However, it does not appear that the giveaways distributed by the exhibitors have a value in excess of $100. Therefore, these giveaways can be accepted by a sheriff and would not have to be disclosed by the sheriff on his quarterly gift disclosure form, CE Form 9.

As for lobbyists paying for a portion of the cost of a meal or other social function at a conference, Section 112.3148(4) prohibits a reporting individual from accepting, directly or indirectly, a gift from a lobbyist. On the issue of indirect gifts, we have promulgated Rule 34-13.310(6), Florida Administrative Code, which provides:

Where a gift is given to a person other than the reporting individual or procurement employee by a political committee or committee of continuous existence as defined in the campaign financing laws (Chapter 106, F.S.), by a lobbyist who lobbies the agency of the reporting individual or procurement employee, or by the partner, firm, employer, or principal of a lobbyist, and where the gift is given with the intent to benefit the reporting individual or procurement employee, such gift will be considered an indirect gift to the reporting individual or procurement employee.

In our view, payment of money by lobbyists to FSA to pay a portion of the cost of a meal or other social function at a conference comes close to constituting an indirect gift to the sheriffs. However, because you have represented that the money is used to provide food and beverages to sheriffs and other conference attendees, and because Section 112.312(12)(b)6, Florida Statutes, excludes from the definition of "gift" food or beverage consumed at a single sitting or event, we cannot conclude that the sheriffs attending a conference have received either a prohibited or reportable gift when they partake in meals or other social functions paid for, in part, by lobbyists who lobby them or their departments. This is not to suggest that, under other factual circumstances, we might conclude that an indirect gift has been given where a lobbyist pays a third party for the cost of food and beverages provided for the benefit of a reporting individual and his guests. See Example 2 of Rule 34-13.310(6), Florida Administrative Code. But here, where the organization is holding the conference and not an individual sheriff, we do not believe that sheriffs have received an indirect gift from lobbyists which is either prohibited or reportable under Section 112.3148, Florida Statutes, because in this instance the reporting individual in question, the sheriffs, are receiving only food and beverage consumed at a single sitting or event.

Regarding the door prizes awarded during a conference, we view that situation differently than the situation involving the provision of food or beverages by lobbyists discussed in the preceding paragraphs. In CEO 91-69, we opined that reporting individuals employed by a county commission were prohibited from accepting a cash door prize donated by sponsors of a seminar where the donors of the cash prize all employed lobbyists who lobbied the county commission. There also, we attributed the cash prize to each and every sponsor of the seminar, not just the chamber of commerce from whose treasury the funds for the gift were derived. Here, it is our understanding that the FSA receives the item to be given as a door prize from a lobbyist and then awards the door prize in a drawing in which only sheriffs are eligible to participate. Accordingly, where a lobbyist agrees to donate a door prize to the FSA, it would appear that he has given a gift with an intent to benefit a sheriff, a reporting individual. That gift therefore would be considered an "indirect gift" for purposes of Section 112.3148(4), Florida Statutes, and Rule 34-13.310(6), Florida Administrative Code. Further, where a sheriff receives a door prize with a value in excess of $100 provided by a lobbyist, he has received an indirect gift from a lobbyist which is prohibited by Section 112.3148(4), Florida Statutes. No violation would exist only if the sheriff accepts the gift on behalf of a governmental entity or a charitable organization, but then he must "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, and Rule 34-13.320(1), Florida Administrative Code.

Question 2 is answered accordingly.