Ethics Guidelines for Accepting Gifts at Florida Clerks of Court Conference
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.
2
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.
3
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.
4
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.
5
What gifts can I take?
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.
6
“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.
7
2013, SB 2, Procurement Employee
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 months
participates
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.
8
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.
9
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.
Gifts given to influence
10
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.
11
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.
Gifts
12
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.
Gift example
13
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)
14
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.
Thinking about who received a gift
15
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.”
Gifts
16
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.
17
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
18
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
19
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
20
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.
21
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.
22
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;
23
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:
24
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.
25
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.
26
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).
27
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)
28
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.
29
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
may
accept 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
30
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
31
CEO 13-3 TRAVEL
A mayor's travel to conferences and events paid for by others would not be considered "gifts to the city." The mayor's travel constituted gifts to him personally. Only where a public official's travel is paid for by his own agency, and where his agency then receives reimbursement from a third party would the reimbursement received by the agency be considered a "gift to the agency." Funds received by the city from third parties and deposited into a public fund which are then used to pay for official travel by city officials could also be considered a "gift to the agency."
See also, CEOs 91-21, 91-37, 91-57, 92-12, 98-8, and 07-3.
-----
CEO 08-29 PSAs
Appearances by a city commissioner in public service announcements promoting an anti-littering campaign would constitute a "gift" under the ethics law where the announcements are paid for by local hotels and shown by a local movie theatre company if the hotel or the theatre company is a principal of a lobbyist. The free exposure, via appearance in the public service announcements, constituted a "gift" to the official within the meaning of the law. While the advertising was clearly "on behalf of" the public programs or public purpose, it clearly was made available "on behalf of" the officials serving as spokespersons as well.
BUT SEE
CEO 08-2
Limited to the facts of this opinion only, appearances by the Attorney General in public service announcements promoting a Florida conference for women would not constitute a prohibited gift. While the appearances are a "gift," the donor is a nonprofit corporation putting on the conference; the appearances are not an indirect gift from the principals of lobbyists. And while the Attorney General ultimately receives a benefit (in the form of free publicity in the announcements) from the expenditure of sponsor money made by principals of executive branch lobbyists to the nonprofit, the facts do not indicate that the sponsorship moneys were provided by the corporate sponsors with the intent to obtain the goodwill of the Attorney General.
AND
CEO 12-16
The Governor can accept, and is not required to report, the airing on airport shuttle buses of greetings recorded by him. Although the airport authority is a principal of a lobbyist for purposes of both the gifts law and the expenditure law, for gifts law purposes the airing does not have a value in excess of $100, and if it had such a value it would not be prohibited but would be reportable as a gift from a government entity having a public purpose.
-----
CEO 07-3 Discounted Hotel Rates
Employees of the Office of Financial Regulation have not received a "gift" when they attended a conference in their official capacity sponsored by the Florida International Bankers’ Association that offers a discounted rate to employees of state and federal regulatory agencies. Even though some of the sponsoring organization's members may be regulated by the Office of Financial Regulation and the conference is underwritten by entities that may be Executive Branch lobbyists or principals, the discounted registration rate of $250 per person is not a gift purposes of Florida's ethics laws.
Where the discounted registration rate is being offered to the agency and not the employee personally (since it is the agency that will designate which employees attend the conference and then will pay their $250 registration fees along with other travel expenses), the Commission did not view the discounted registration rate as a gift to the individual employee but instead, as a gift to the agency.
Since the gift laws do not prohibit or require the reporting of gifts to agencies, and since the Commission had previously opined that public officers and employees have not received a gift when they travel on official agency business paid for by their agencies, the discounted conference rate offered to OFR employees is neither a prohibited gift nor a gift which must be disclosed by OFR employees who attend the conference.
-----
CEO 04-11 Home Loan
The Miami-Dade County School District and a new Superintendent executed an Employment Agreement which contemplated the School Board's assistance in obtaining a home loan for the Superintendent from non-school resources. (His family continued to reside in California in a home maintained by him, and similar offers were made by school districts in other states who were interested in obtaining his services.) The Employment Agreement evinced a mutual desire on the part of both parties to ensure that the loan in no way jeopardized the public trust or violated the Code of Ethics. We decline to address any policy issues surrounding the proposed arrangement or whether loans of this nature should be encouraged by public institutions.
A $150,000 home loan paid for by a private benefactor could be accepted by a school superintendent without violating the gift law, as long as neither the benefactor nor any other contributor to the loan are lobbyists or the partners, firms, employers or principals of lobbyists who lobby the school district. The school superintendent would be required to disclose the receipt of the loan on his quarterly gift disclosure form - CE Form 9.
-----
CEO 04-12 Golf Tournament
An invitation to play in a charitable golf tournament was an "event" that is valued based upon the cost an individual had to pay to play in the tournament. When the Executive Director of DOR was invited to play in a tournament by a company that had entered into contracts with DOR within the past 12 months, he received a gift valued at $225. Since the company which invited the Executive Director to play in the tournament does business with DOR and had entered into at least one contract with DOR within the preceding 12 months, the Executive Director received a prohibited gift unless, within 90 days of receipt, he were to down the value of the gift, so that its value did not exceed $100.
Explore the ethical considerations and laws surrounding gifts at the Florida Clerks of Court winter conference in Jacksonville, focusing on the prohibition of quid pro quo exchanges and the definition of gifts under Florida statutes. Learn about a specific case regarding city commissioners receiving theater tickets and guidance on accepting unsolicited gifts for staff.
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Presentation Transcript
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. 2
Whats 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. 3
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. 4
Last months 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. 5
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. 6
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. 7
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 months participates 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. 8
Employee Gift Giver RIPE not a RIPE Lobbyist, vendor, or political committee May not accept a gift worth over $100. Gifts worth over $25 will be reported by the gift giver on Form 30. May accept the gift. May accept the gift. Beware indirect gifts. Relative of the employee May accept the gift. Anyone else May accept the gift. Gifts worth over $100 must be reported by the RIPE quarterly on Form 9. May accept the gift. 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. 9
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. 10
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. 11
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. 12
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. 13
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) 14
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. 15
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. 16
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. 17
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 18
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 19
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 20
CE Rule on indirect gifts 34-13.310 Prohibitions Against Accepting and Giving Gifts. 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. (6) Indirect Gifts. (a) Where a gift is provided to a person other 21
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. 22
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; 23
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: 24
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. 25
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. 26
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). 27
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) 28
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. 29
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 may accept 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 30
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 31
