CEO 96-2 -- January 29, 1996

GIFT ACCEPTANCE AND DISCLOSURE

LEGISLATOR RECEIVING SKYBOX TICKETS FOR BASKETBALL

PLAYOFF GAME FROM COUNTY CHAIRMAN

TO: The Honorable Bill Sublette, Member, Florida House of Representatives, District 40 (Orlando)

SUMMARY:

Consistent with CEO 95-36, a legislator received a gift with a value in excess of $100, where he accepted two tickets to an NBA playoff game, given to him by a county chairman. Although the tickets, which provided seating in the county's skybox at the municipal arena, were provided without cost to the county or its chairman, their valuation is controlled by the principles contained in Section 112.3148(7), Florida Statutes, and Rule 34-13.500, Florida Administrative Code. Specifically, the tickets are valued based on the cost of admission to persons with similar tickets. Therefore, Section 112.3148(4) prohibited the legislator from "knowingly" accepting a gift with a value in excess of $100 from the principal of lobbyists who lobby the Florida Legislature. However, under the circumstances, it cannot be concluded that such a gift was "knowingly" accepted.

QUESTION:

Are two tickets to an NBA playoff game, given to you, a member of the House of Representatives, by a county chairman, considered to be gifts subject to the provisions of Section 112.3148, Florida Statutes, where the tickets had no face value and were provided without cost to the county or its chairman?

Under the circumstances presented, your question is answered in the affirmative.

Through your initial letter of inquiry and other correspondence, we are advised that you received two tickets from the Orange County Chairman to NBA Playoff Game 7, held on May 25, 1995 in the Orlando Arena. The tickets provided seating in the County's skybox, were marked $-0-, and were reportedly provided without cost to either the Chairman or the County. Under these circumstances, you question whether the tickets were "gifts" subject to the provisions of Section 112.3148, Florida Statutes.

Under the statutory definition of a "gift," Subsection 112.312(12)(a)10 includes "[e]ntrance fees, admission fees, or tickets to events, performances, or facilities.@ Thus, we conclude that the tickets you received fall within this statutory definition and were Agifts.@ However, the real issue you have asked us to confront is the treatment of these tickets pursuant to Section 112.3148, Florida Statutes. Whether a gift can legally be accepted, and concomitantly, whether it must be reported, frequently depends on the gift=s valuation. As for its acceptance, Section 112.3148(4) states:

A reporting individual or procurement employee or any other person on his or her 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 or she 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.

Section 112.3148(4) prohibits a legislator from knowingly accepting a gift from a lobbyist who lobbies the Legislature, or from the partner, firm, employer, or principal of such a lobbyist, where he knows or reasonably believes that the gift has a value in excess of $100. Although the Orange County Chairman is not registered as a legislative lobbyist pursuant to Section 11.045, Florida Statutes, the lobbyist registration maintained by the Joint Legislative Management Committee lists several lobbyists who are registered to represent Orange County before the Legislature. Thus, it is our view that Orange County would be considered the principal of lobbyists who lobby the Legislature and that Section 112.3148(4) would prohibit your acceptance of a gift with a value in excess of $100 from the County through its Chairman.

We also observe that Section 112.3148(6) is inapplicable to your inquiry. That provision generally allows certain governmental entities and direct-support organizations to give gifts with a value in excess of $100 to reporting individuals and procurement employees under specific conditions. However, here, the statutory condition that a public purpose be served by both the giving and receipt of a gift is not met. As noted in our Rule 34-13.320(2)(b), Florida Administrative Code:

Where the gift involves attendance at a spectator event and is given by a governmental entity, and were the donee has no direct supervisory or regulatory authority over the event, persons participating in the event, or the governmental entity which gave the tickets to the donee, there is no public purpose shown for the giving of, or the receipt of, the gift.

Thus, Section 112.3148(6) is not applicable.

Valuation of the tickets you received is our next consideration, and we recently confronted that issue in CEO 95-36. There, Orange County, as the donor of identical tickets for the current NBA season, sought our guidance on their valuation even though the County receives them from the City at no cost. We concluded, applying the various valuation principles included in Section 112.3148(7), Florida Statutes, and Rule 34-13.500, Florida Administrative Code, that the tickets should be valued at the cost of admission to persons with similar tickets. Thus, the value of each ticket to a Magic game in the County=s skybox this season is $105.

After we rendered CEO 95-36, County staff represented that tickets comparable to those you received for Game 7 of the 1995 NBA Playoffs cost $100 each. Thus, in being given two tickets by the County Chairman, you received a gift with a value in excess of $100 from the principal of lobbyists who lobby the Legislature. While acceptance of such a gift is prohibited by Section 112.3148(4), we note that the statute includes qualifying words such as Aknowingly accepting@ and Aknows or reasonably believes.@ Under the circumstances, it can hardly be concluded that you acted Aknowingly@ or Areasonably believed@ that you were accepting a gift worth over $100 from the principal of lobbyists. This is evident from the correspondence which accompanies both your opinion request and that of the County. In fact, we note that before seeking its opinion, County staff incorrectly advised recipients of Magic tickets to disclose them on CE Form 10 (AAnnual Disclosure of Gifts from Governmental Entities and Direct Support Organizations and Honorarium Event Related Expenses@) and to indicate that their value was Aindeterminate.@ Therefore, we cannot say that your acceptance of these tickets, under the circumstances presented, violated Section 112.3148(4), Florida Statutes.

Several other issues merit discussion. First, Section 112.3148(8) requires the quarterly disclosure of gifts you received having a value in excess of $100. Although Section 112.3148(8)(a)2 does not require the disclosure of gifts prohibited by Section 112.3148(4), here, we have concluded that because you did not Aknowingly@ accept a gift with a value in excess of $100 from the principal of a lobbyist who lobbies the Legislature, your receipt of the two Magic tickets was not a gift prohibited by Section 112.3148(4), Florida Statutes. Therefore, you should disclose the May 1995 receipt of those two tickets on our CE Form 9 for the calendar quarter ending September 30, 1995.

Second, after we rendered CEO 95-36, we were advised that you had sent the County a personal check in the amount of $210 as reimbursement for the tickets, as it was your stated policy not to accept gifts in any form. Although Acompensation provided by the donee to the donor shall be deducted from the value of the gift in determining the value of the gift,@ pursuant to Section 112.3148(7)(b), Florida Statutes, we are reluctant to conclude that because you (over)reimbursed the County in December 1995, you did not receive a gift in May 1995. Generally, we are of the view that such compensation should occur nearly simultaneously to the giving of the gift.

Accordingly, the two tickets you received from the County Chairman in May 1995, which admitted you to the County=s skybox in the Orlando Arena for NBA Playoff Game 7, was a Agift@ with a value in excess of $100 that was not prohibited by Section 112.3148(4), Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 25, 1996, and RENDERED this 29th day of January, 1996.

__________________________

William J. Rish

Chairman