CEO 94-38 -- September 1, 1994

GIFT ACCEPTANCE AND DISCLOSURE

LEGISLATORS RECEIVING CERTAIN ITEMS FROM

VARIOUS GOVERNMENTAL AGENCIES

To: (Name withheld for lack of consent.)

SUMMARY:

Although Section 112.312(12)(b)7, Florida Statutes, excepts from the definition of a "gift" the "use of a public facility or public property, made available by a governmental agency, for a public purpose," in light of the disclosure requirements imposed by Section 112.3148(6), Florida Statutes, that language does not exempt as gifts telephone services and equipment or parking privileges provided to legislators by various governmental agencies. Thus, the acceptance and disclosure of those items is governed by Section 112.3148, Florida Statutes. CEO 91-53 is referenced.

QUESTION:

Is the receipt by members of the Hillsborough County legislative delegation of telephone service and equipment from Hillsborough County, parking passes from the Hillsborough County Aviation Authority, and parking passes from the Tampa Sports Authority, considered to be "gifts" governed by the acceptance and disclosure provisions of Section 112.3148, Florida Statutes?

Your question is answered in the affirmative for each of those items.

In your letter of inquiry you advise that Hillsborough County provides telephone services to members of the area's legislative delegation and, in accordance with the advice we rendered to the members of your delegation in CEO 91-53, delegation members report the receipt of those services valued at over $100 for any given month on CE Form 10 by July 1st of each year. You also advise that members of the delegation receive annual parking passes from the Hillsborough County Aviation Authority and from the Tampa Sports Authority, both of which permit the holder to park without charge at the airport or at various sporting events. Because of a 1991 amendment to the definition of "gift" contained in Chapter 91-292, Laws of Florida, you question whether the receipt of any of these items still comes within the definition of a gift which would be governed by the acceptance and disclosure requirements of Section 112.3148, Florida Statutes.

Section 112.312(12), Florida Statutes, 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 or 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:

3. Tangible or intangible personal property.

4. The use of tangible or intangible personal property.

5. Transportation, lodging, or parking.

13. Other personal services for which a fee is normally charged by the person providing the services.

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

(b) 'Gift' does not include:

7. The use of a public facility or public property, made available by a governmental agency, for a public purpose.

In addition, Section 112.3148(6)(a), Florida Statutes, provides:

Notwithstanding the provisions of subsection (5), an entity of the legislative or judicial branch, a department or commission of the executive branch, a county, a municipality, an airport authority, or a school board may give, either directly or indirectly, a gift having a value in excess of $100 to any reporting individual or procurement employee if a public purpose can be shown for the gift; and a direct-support organization specifically authorized by law to support a governmental entity may give such a gift to a reporting individual or procurement employee who is an officer or employee of such governmental entity.

As we stated in our previous opinion, we view the County's provision of telephone equipment and services to members of its legislative delegation as a gift, which the legislators may accept but must disclose annually pursuant to Section 112.3148(6)(d), Florida Statutes. We do not view the language contained in Section 112.312(12)(b)7 as excluding from the definition of a "gift" the County's provision of telephone services and equipment to the legislative delegation. Nor do we believe that the provision of parking passes by the Aviation Authority or by the Sports Authority would be excluded from being considered to be "gifts" because of this language.

We construe narrowly the language contained in Section 112.312(12)(b)7 to exclude as a "gift" only those situations where a governmental agency allows a reporting individual (or procurement employee) to use the agency's facilities for some public purpose. For example, if the County were to permit a local legislator to use the County Commission chambers for a "town hall" type meeting in order to meet with constituents and exchange ideas, we would interpret Section 112.312(12)(b)7 to exclude the legislator's receipt of the use of that facility as a gift necessitating disclosure pursuant to Section 112.3148, Florida Statutes.

We do not view this definitional exclusion as omitting from Section 112.312(12) every item or privilege which some governmental agency might bestow upon a reporting individual or procurement employee. Otherwise, such an interpretation would render Section 112.3148(6) virtually meaningless and would contravene the Legislature's intent in enacting a statutory scheme by which certain enumerated governmental agencies may give gifts with a value in excess of $100 to reporting individuals and procurement employees, which must have a public purpose, and which must be disclosed by both the donor and the donee. To interpret Section 112.312(12)(b)7 otherwise would weaken the extensive gift acceptance and disclosure legislation enacted in late 1990, and we as a Commission are disinclined to assist in undercutting that scheme with the suggested interpretation.

Thus, with regard to the legislative delegation's receipt of telephone services from Hillsborough County, the reasoning of CEO 91-53 applies.

As for the airport parking passes provided to legislators by the Hillsborough County Aviation Authority, these passes are "gifts" which Section 112.3148(6), Florida Statutes, would permit the Aviation Authority to give to the legislators whether or not the Authority retains or employs a lobbyist who lobbies the Legislature. However, the giving of and receipt of these parking passes is conditioned upon there being a public purpose served by the Authority giving the pass to a legislator and in the legislator's acceptance of it. See Rule 34-13.320(2)(a), Florida Administrative Code. In this regard, we note that a public purpose would be served by the legislator's use of the pass when travelling on official legislative business, because the Legislature (and ultimately State taxpayers) would ultimately reimburse the legislator for his travelling expenses pursuant to Chapter 112.061, Florida Statutes, but for the receipt of these parking privileges. As for the valuation of the airport parking pass for gift reporting purposes, Rule 34-13.500(6), Florida Administrative Code, states:

'Per occurrence' as stated in Section 112.3148(7)(i), F.S., means each separate occasion in which a donor gives a gift to a donee. The provisions of this subsection may be illustrated by the following example:

EXAMPLE: If X Airport Authority gives Reporting Individual B ("B") a parking pass enabling B to park at the airport free of charge, each occasion B uses the pass she has received a gift. If she parks there for one day, she has received one gift; if she parks there for three consecutive days each month for twelve months, she has received twelve separate gifts.

Therefore, based upon the statute and upon our rules implementing Section 112.3148, only those uses of a pass resulting in parking expenses in excess of $100 per occurrence would be reported by the legislator on his CE Form 10.

We also note that prior to the 1991 exclusion for the use of public facilities and property for a public purpose, the General Counsel of the House of Representatives had opined (in Opinion 91-09, January 29, 1991) that a parking permit provided by the County Aviation Authority to delegation members would not be exempted as being a gift from a governmental entity having a public purpose, because the Aviation Authority was a special district not included among the types of governmental agencies allowed to provide such gifts. Apparently in response to this opinion, Chapter 91-292 amended the list of types of agencies that could provide gifts having a public purpose to include "an airport authority." This amendment would not have been necessary if it were generally understood that the exclusion for the use of public facilities and property for a public purpose applied to the Aviation Authority's parking permits, we believe.

As for the annual parking pass provided to legislators by the Tampa Sports Authority, we note that those governmental agencies authorized by Section 112.3148(6)(a) to give gifts with a value in excess of $100 do not include sports authorities. Therefore, Section 112.3148(6) is inapplicable, and other provisions contained in Section 112.3148 govern the giving and receipt of gifts in that situation. You advise that the Tampa Sports Authority does not employ or retain a lobbyist who lobbies the Legislature. Therefore, the Tampa Sports Authority is not prohibited from giving a gift with a value in excess of $100 to a legislator, and the legislator is not prohibited from accepting it. However, the legislator would be required to report quarterly on CE Form 9 any gifts received from the Sports Authority which have a value in excess of $100. See Section 112.3148(8), Florida Statutes. Here, you have indicated that the Tampa Sports Authority has valued the annual parking pass at $100. However, consistent with our Rule 34-13.500(6), Florida Administrative Code, we believe that the value of the parking pass would be calculated per occurrence of its use. Because parking for the pro football games held at the stadium costs $10 per game and parking for other events generally costs $5, it seems unlikely that the per occurrence use of the parking pass would exceed $100. For that reason, the legislator likely would not be required to disclose the receipt of the parking pass from the Tampa Sports Authority.

Your question is answered accordingly.