Florida Clerks of Court and Comptrollers

Florida Clerks of Court and Comptrollers Ethics - Gifts Winter Conference Jacksonville, Florida January 30, 2014

Gift law and beyond • The primary gift law is found at s. 112.3148, F.S., but you must also be aware of s. 112.313(2) and (4), F.S. • Anything of value given in exchange for your action or to influence you (quid pro quo) is prohibited by s. 112.313(2), F.S. • Compensation or anything of value given to influence your action is prohibited by s. 112.313(4), F.S.

What’s a gift • If you didn't pay for it, it may be a gift. • Anything of value not primarily related to contributions, expenditures, or other political activities authorized under ch. 106, F.S. • Anything you get, for which you do not give equal or greater consideration within 90 days.

CEO 92-33 City commissioners received a gift, not a benefit of office, when the city gave them a block of tickets to performances at a municipally-owned theater. (The city received the tickets as a condition of its lease agreement with the producers.) There was no indication that the tickets were indirect gifts from a lobbyist who lobbied the city commission, and no indication that the city contract manager was a lobbyist who lobbied the city commission. The tickets were divided among the members of the city commission for personal use or to distribute to others. Members of the city commission could accept the tickets, but where the combined face value of a set of tickets exceeded $100, the commissioner had to disclose them on the quarterly CE Form 9.

Last month’s popular question Is our office allowed to accept unsolicited gifts to staff at Christmas? • We received a check from an attorney’s office, with a note that says they wanted to make a donation to the staff’s Christmas party. We would use this money to purchase door prizes to give in a random drawing. • We have vendors that send us actual prizes that we would give in a random drawing. • And, we get a lot of fruit and cookies. • None of this is solicited.

What gifts can I take? The answer under the ethics laws depends on the gift giver and on whether the employee is a reporting individual or a procurement employee (RIPE). This answer does not address how an individual Clerk’s office may further limit gifts to address issues such as fairness and morale.

“RIPE” • “Reporting Individual” is a public officer or employee who files financial disclosure. • “Procurement Employee” is a state executive or judicial branch employee who participates in the procurement of contractual services or commodities where the cost exceeds $10,000 per fiscal year.

2013, SB 2, Procurement Employee 112.3148 Reporting and prohibited receipt of gifts by individuals filing full or limited public disclosure of financial interests and by procurement employees.— (2) As used in this section: (e) “Procurement employee” means any employee of an officer, department, board, commission, or council, or agency of the executive branch or judicial branch of state government who has participated in the preceding 12 monthsparticipates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s. 287.012, if the cost of such services or commodities exceeds or is expected to exceed $10,000$1,000 in any fiscal year.

Employees, even if they are not RIPEs, may NOT accept the gift if it is given to influence their official action. Section 112.313(2) and (4), F.S.

Gifts given to influence Assume that: • The gift is given to influence official action of a public officer or employee. • The gift may not be accepted by the Clerk or by any employee, whether or not that employee is a RIPE.

Soliciting Gifts • A RIPE is prohibited from soliciting any gift from a political committee, a vendor, or a lobbyist (including the partner, firm or principal of a lobbyist) if it would benefit the person or their immediate family. Section 112.3148(3), F.S.

Gifts • Beginning in 2013, gifts from vendors to RIPEs are restricted the same way as gifts from lobbyists. ss. 112.3148(2)(f), (3), (4), and (5)(a), F.S. • Beginning in 2013, a RIPE and their parents, spouses, children, and siblings are prohibited from accepting any gift from a political committee. s. 112.31485, F.S. • It may be wise if no one who works for a RIPE solicits a gift from a lobbyist, vendor, or political committee for the RIPE. (Indirect gift) • Lobbyist means anyone who, for compensation, is seeking or has sought in the last 12 months to influence the governmental decisions of a RIPE or a RIPE’s agency. • The term “lobbyist” includes the partner, firm, employer, or principal of the lobbyist.

Gift example Assume that: • The gift is not from a lobbyist, vendor, or political committee. • The gift is not given to influence official action of a public officer or employee. • If a person gives an unsolicited “holiday” gift to an employee in the Clerk’s office, the employee may accept it. If the employee is a RIPE and the gift is worth over $100, it must be reported on the quarterly gift disclosure form.

Value of a gift • You may not accept a gift worth over $100 from a vendor, political committee or lobbyist (including the lobbyist’s. partner, firm, employer, or principal). • What’s the value of a gift? • Generally, cost minus tax and gratuities. • Lodging is $44 a night (state rate). • Transportation is valued as comparable commercial conveyance. • Tickets are face value (daily or per event, whichever is greater). • What do I have to report (quarterly)? • Gifts worth over $100 from anyone except relatives as defined by law (gifts from them are exempt)

Thinking about who received a gift • If a person gives a gift to the Clerk’s office, not for a particular employee, but to be distributed in a manner chosen by the office, I do not find direct guidance from the Commission. • The gift could be evaluated based on the person(s) who ultimately receive or benefit from it. Example, a tray of cookies or a dozen Poinsettia plants are dropped of for the benefit of the entire office. Divide the value by the number of employees at that location to determine the value of the gifts. (Ensure it’s not an indirect gift to the boss.) • The gift could be evaluated based on the person who accepts it for the office to distribute (“re-gift”) later. If the person who accepts is a RIPE (and the gift is not from a lobbyist, etc.) and the total gift is worth over $100, that person would report the total value on the quarterly gift disclosure form. When the gift is “re-gifted” in some manner in the office, if a recipient is a RIPE and the “re-gifted” portion is worth more than $100, the RIPE should also report the gift.

Gifts • Note that there may be some confusion based on how the donation is received – by whom and for whom. Commission on Ethics rule 34-13.200 defines "donee" as “the person who receives the gift, or on whose behalf the gift is made.”

How I see it • If a law firm’s employees genuinely like the employees in the Clerk’s office; appreciate their patience, helpfulness, and expediency; and wish to say “thank you” with a reasonable gift, you should be proud to accept it (remembering the quarterly gift disclosure requirement for RIPEs). • If a law firm is offering a gift as some kind of subtle quid pro quo, or in an attempt to curry favor (treatment that any person off the street would not normally receive from the Clerk’s office), you should carefully evaluate how the gift might be viewed by an outside person – regardless of the fact that the gift would have no effect on your actions.

It goes without saying that if the aim is to create an expectation of a “favourable” act in return for the gift or hospitality, then it probably isn’t a gift. Judith Irwin, “How corporate gift- giving can be ethical” 2012

Gifts a RIPE may take • Gifts from the 37 types of relatives included in the statutory definition • Gifts on behalf of a governmental entity or charitable organization • Gifts from persons who are not lobbyists, principals, vendors, but you must report any valued over $100 • Gifts from government organizations and DSOs, but you must report any valued over $100

RELATIVES in the Gift Ban 112.312 Definitions. (21) “Relative,” unless otherwise specified in this part, means an individual who is related to a public officer or employee as father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, person who is engaged to be married to the public officer or employee or who otherwise holds himself or herself out as or is generally known as the person whom the public officer or employee intends to marry or with whom the public officer or employee intends to form a household, or any other natural person having the same legal residence as the public officer or employee. THIRTY-SEVEN

CE Rule on indirect gifts 34-13.310 Prohibitions Against Accepting and Giving Gifts. (6) Indirect Gifts. (a) Where a gift is provided 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, where the gift or the benefit of the gift ultimately is received by the reporting individual or procurement employee, and where the gift is provided 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.

CE Rule on indirect gifts (b) Where a gift or the benefit of a gift is provided to a reporting individual or procurement employee by someone other than a political committee or committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, but the gift or the expense of the gift has been provided by or paid for by a political committee or committee of continuous existence, a lobbyist, or the partner, firm, employer, or principal of a lobbyist, who intends thereby to benefit the reporting individual or employee, such gift will be considered an indirect gift to the reporting individual or procurement employee.

CE Rule on indirect gifts (c) Factors which the Commission will consider in determining whether an indirect gift has been made include but are not limited to: 1. The existence or nonexistence of communications by the donor indicating the donor’s intent to make or convey the gift to the reporting individual or procurement employee rather than to the intervening third person; 2. The existence or nonexistence of any relationship between the donor and the third person, independent of the relationship between the donor and the reporting individual or procurement employee, that would motivate a gift to the third person; 3. The existence or nonexistence of any relationship between the third person and the reporting individual or procurement employee that would motivate the gift. 4. Whether the same or similar gifts have been or are being provided to other persons having the same relationship to the donor as the third person;

CE Rule on indirect gifts 5. Whether, under the circumstances, the third person had full and independent decision-making authority to determine whether the reporting individual or procurement employee, or another, would receive the gift; 6. Whether the third person was acting with the knowledge or consent of, or under the direction of, the donor; 7. Whether there were or were intended any payments or bookkeeping transactions between the third person and the donor, reimbursing the third person for the gift; and 8. The degree of ownership or control the donor has over the third person. (d) The provisions of this subsection may be illustrated by the following examples:

CE Rule on indirect gifts • EXAMPLE 1: A law firm which lobbies the agency of Reporting Individual C (“C”) invites all of its attorneys to attend a weekend retreat. The attorneys are encouraged to bring their spouses or significant others at the firm’s expense. C is married to an attorney in the firm and has been asked by her spouse to attend the retreat. The lodging provided to C for the retreat would be considered a gift to C from her spouse and thus not prohibited, because the firm’s invitation was extended to C’s spouse by virtue of his employment with the firm. • EXAMPLE 2: Reporting Individual D (“D”) hosts a fox hunt attended by other reporting individuals. Lobbyists who lobby the agency of D give money to a third person, who is not a reporting individual, to pay for the food and beverages which will be served at the fox hunt. D orders and prepares the food and beverages. The money provided to the third person by the lobbyists would be a gift to D, because it was given with the intent of benefiting D and his guests at the fox hunt.

CE Rule on indirect gifts • EXAMPLE 3: A principal which employs 10 lobbyists who lobby the agency of Reporting Individual M (“M”) channels a gift costing $1,000 to M through its 10 lobbyists. Although each lobbyist’s share of the gift is $100, the gift would be prohibited because it is an indirect gift from the principal with a value of excess of $100. • EXAMPLE 4: Reporting Individual N (“N”) and N’s spouse have arranged to take a vacation trip together. A lobbyist who lobbies N’s agency meets with the spouse and offers to pay for the spouse’s travel expenses, which would exceed $100. The lobbyist and N’s spouse know each other only through the lobbyist’s involvement with N. This would constitute an indirect gift to N, and would be prohibited because its value exceeds $100.

CEO 93-27 • Lobbyists provided door prizes for award at a meeting of the Florida Sheriffs’ Association. If a door prize had a value in excess of $100, that gift would be considered an indirect gift pursuant to s. 112.3148(4), F.S., and the Commission’s rules, and a sheriff would be prohibited from accepting it (as an indirect gift).

Gift Forms for RIPEs and Donors • Form 9 Quarterly Gift Disclosure (Gifts Over $100) • Form 10 Annual Disclosure of Gifts From Governmental Entities and Direct Support Organizations and Honorarium Event Related Expenses • You are not required to file these forms for any period (quarter or year) during which you did not receive a reportable gift • Form 30 Donor’s Quarterly Gift Disclosure (filed by lobbyists, vendors, political committees)

Honoraria • An honorarium is a payment, directly or indirectly, to a RIPE, or any other person on his or her behalf, as consideration for an oral presentation or a writing other than a book, that is intended to be published s. 112.3149, F.S. • An honorarium event is a meeting or function, or a series of related meetings or functions such as a convention held over several days, where the RIPE has been invited to make a speech, address, oration, or other oral presentation Rule 34-13.230, F.A.C.

Honoraria • A RIPE may not solicit an honoraria related to their public office or duties • A RIPE may not accept an honoraria from political committees, vendors, or lobbyists (and their principal, employer, partner, or firm) • A RIPE mayaccept actual and reasonable expenses for transportation, lodging, food and beverage, and registration fees related to an honorarium event (unless otherwise prohibited) • Annually, a RIPE must disclose honorarium event related expenses paid by lobbyists

Is “ethical public service” a contradiction in terms? . . . ethics of compliance: tell me what is right, what is wrong, what is legal, what is not permissible; if there is anything free from blame, if there is any security from accusation, tell me about these things so that I can be judged an ethical public servant. Louis C. Gawthrop, Public Service and Democracy, 1998, p. 153

Florida Clerks of Court and Comptrollers