CEO 01-19 -- October 23, 2001
GIFT ACCEPTANCE AND DISCLOSURE
CITY OFFICIALS HOSTING EVENTS AT CITY-OWNED STADIUM
To: Mr. Mark A. Winn, Chief Assistant City Attorney (St. Petersburg)
Based upon the specific factual circumstances presented in this opinion, City officials who serve as "hosts" to groups using the City's stadium suite or tickets pursuant to the City's written policy have not received a "gift" pursuant to Section 112.3148, Florida Statutes. The definition of "gift" in Section 112.312(12) only includes that "for which equal or greater consideration is not given." Public officers and employees provide equal or greater consideration to their own agencies when acting in their official capacities as agency representatives.
Have reporting individuals who are City officers or employees received a "gift" for purposes of Section 112.3148, Florida Statutes, when they, on behalf of the City, host functions pursuant to the City's written policy at the City's baseball stadium?
Your question is answered in the negative based upon the specific factual situation presented.
In your letter of inquiry, you relate that the City of St. Petersburg owns a baseball stadium which it leases to a baseball organization and, as consideration for that lease, the organization provides the City with a suite, tickets, and parking passes for each home game. You write that the City has formulated a written policy for allocating the use of its suite, tickets, and passes. The usage criteria include: to promote economic development; to recognize the contributions of City boards, commissions, committees, community service organizations, neighborhood associations, and youth groups; and to recognize and reward the contributions of City employees. On occasion when the tickets have been allocated under this policy, City officials serve as "hosts" to the City's invitees. You question whether City officials, who also are considered to be "reporting individuals" for purposes of Section 112.3148, Florida Statutes, have received a reportable gift when they act as "hosts" on those occasions?
The definition of "gift" in Section 112.312(12) provides:
(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 of a donee, directly, indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given, including:
. . .
10. Entrance fees, admission fees, or tickets to events, performances, or facilities.
. . .
(b) 'Gift' does not include:
1. Salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with the donee's employment, business, or service as an officer or director of a corporation or organization.
. . .
6. The use of a public facility or public property, made available by a governmental agency, for a public purpose.
. . . .
In CEO 91-46, local officials were unsure whether the travel expenses they received from their own agencies were considered reportable gifts where the reimbursement exceeded $100. However, we applied the concept of quid pro quo which is imbedded in the statutory definition of "gift" to conclude that
when a public officer travels in connection with the performance of his or her public duties, or there is otherwise a proper public purpose for the travel, consideration flows to the public agency. The quid pro quo for the public officer's travel is his agency's reimbursement of him for the travel.
Ultimately, this view was promulgated in Rule 34-13.210(2), Florida Administrative Code, which provides:
Where the donee is being reimbursed or provided by his public agency for travel or expenses incurred in the performance of public duties, the donee has not received a gift when a public purpose for the expense exists. Salary, benefits, services, fees, or other expenses received by a public officer or employee from his or her public agency do not constitute gifts.
A very different situation existed in CEO 92-33, where city commissioners received 20 tickets each to touring Broadway shows staged at the city-owned auditorium, as well as numerous tickets to other events and performances, and were permitted to use or give them away at their discretion. There, we could not accept the view that the tickets were a benefit associated with the commissioners' public offices. Thus, we concluded that the tickets were a reportable gift to the extent that their combined value exceeded $100.
In the series of ethics complaints referenced in your letter of inquiry, we dismissed as legally insufficient allegations that City of Sunrise officials had received reportable gifts when they, in their public capacity, hosted functions in the City's suite at the local arena. The circumstances alleged in those complaints were remarkably similar to those present here, where the city's suite was being used to promote economic development or other public purpose objectives and city officials were present serving as official representatives of the city. The sufficiency analysis, which we approved, applied the rationale of CEO 91-46 and concluded that the city officials had provided equal or greater consideration for their presence in the suite when they were there on behalf of the city.
We further note that in the materials accompanying your opinion request, the City Auditor has advised that where the City's tickets or passes are used by City officials for official business, they are not considered to be a fringe benefit subject to personal income tax. His guidance implies that uses of the suite or tickets not documented to be for business are considered to be personal for tax purposes. We believe that this tax analysis tends to buttress our view that the exclusion in Section 112.312(12)(b)6, Florida Statutes, is not applicable where the recipient is a public officer or employee of the same agency providing the passes or tickets, since an agency's own officials provide equal or greater consideration to it through their service or employment.
Accordingly, under the circumstances presented, we find that City officials have not received a "gift" when they act as official hosts or representatives in accordance with the City's written policy concerning ticket allocation.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 18, 2001 and RENDERED this 23rd day of October, 2001.
Ronald S. Spencer, Jr.
Complaint No. 00-031, In re HARLEM IRWIN, Complaint No. 00-032, In re ROGER WISHNER, and Complaint No. 00-033, In re JOSEPH SCUOTTO, all of which were dismissed as legally insufficient in June, 2000.