CEO 12-16 June 20, 2012

GIFT ACCEPTANCE AND REPORTING;
EXECUTIVE BRANCH LOBBYIST EXPENDITURES

GOVERNOR'S RECORDED GREETINGS
PLAYED ON AIRPORT SHUTTLE BUSES

To:        Jesse Panuccio, Acting General Counsel to Governor Rick Scott

SUMMARY:

Under the particular situation presented in this inquiry, 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, the threshold triggering a prohibition and reporting requirements, 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. Nor is the airing a prohibited expenditure pursuant to Section 112.3215, Florida Statutes. CEO 94-38, CEO 05-11, CEO 06-6, CEO 06-7, CEO 08-2, and CEO 08-29 are referenced.1


QUESTION:

Would the playing to occupants of airport authority shuttle buses of greetings recorded by the Governor constitute a prohibited gift, a reportable gift, and/or a prohibited expenditure to the Governor under Sections 112.3148 and 112.3215, Florida Statutes, where the authority is a principal of a lobbyist?


Your question is answered as set forth below.


You write that you inquire in behalf of Governor Rick Scott as to whether the airing of recorded greetings by him on Tampa Airport Authority shuttle buses would constitute a prohibited or reportable gift, or a prohibited expenditure, under Sections 112.3148 and 112.3215, Florida Statutes, respectively. More particularly, you relate that the director of communications for the Tampa International Airport ("TPA") asked the Governor to record two short messages to be played on the shuttles that ferry passengers between the airport's main hub and its terminals. For shuttles going airside to landside, the greeting would be to the effect of:


This is Florida Governor Rick Scott, and I'd like to welcome you to Tampa Bay, a great place to live, work, and play. Thank you for choosing Tampa International Airport. Enjoy your stay.


For landside to airside:


This is Florida Governor Rick Scott. I hope you enjoyed your stay, and on behalf of the people of the State of Florida, we hope you'll return soon. Enjoy your flight.


You state that the Governor's office would record the greetings using internal resources, and then would send them to the airport for use on the shuttles.2 Further, you relate that the "airtime" for messages on the shuttles is not for sale, cannot be purchased, is only used to promote the airport and Florida tourism, and has no easily identifiable, independent monetary value.

In addition, you state that TPA is one of four large-hub airports in Florida and is part of the Hillsborough County Aviation Authority, a unit of local government originally created by the Legislature in 1945. Although, as you relate, the Authority is a local government entity that must interact with State-level government as part of its mission, the Authority is a principal of a registered executive branch lobbyist. Further, you relate that recently the Legislature (via Chapter 2012-234, Laws of Florida) directed the Authority to


manage airport facilities and grant airport concessions to further the development of commerce and tourism in or affecting the Tampa Bay area and the state. In managing its facilities and granting concessions for services to the public, the Authority shall promote the development of commerce and tourism by: . . . [f]ostering Florida's image as a commercial and tourist center.


And, you state that in accord with the Legislature's findings and direction, the Authority has undertaken a new effort to promote TPA as a traveler-friendly gateway to Florida. In addition to playing greetings on its shuttles, TPA is installing a welcome feature in the baggage-claim area, posting new signs directing travelers to ground transportation, and encouraging promotional tie-ins with local businesses and sports teams. Continuing, you state that the Governor views tourism as vital to his public capacity mission of advancing economic growth and creating jobs in Florida, thus recognizing that airports are vital to Florida's tourism industry and overall economy.

It is apparent from your inquiry that the greetings are viewed by the Governor as necessary to further tourism, economic development, and related concerns. However, in recognition of our previous decisions analyzing similar situations under Section 112.3148, Florida Statutes (the gifts law), and Section 112.3215, Florida Statutes (the lobbyist/principal expenditure law), you seek our determination as to the greetings in regard to both statutes.

Section 112.3148(4), Florida Statutes, prohibits state "reporting individuals" (persons, including the Governor, required to file financial disclosure), from knowingly accepting a gift from a principal of a lobbyist, if the reporting individual knows or reasonably believes that the gift has a value in excess of one hundred dollars. Under the statute, several issues are presented, including: whether the "airtime" (playing of the Governor's greetings on the shuttles) is a gift to him from the Authority, whether the Authority is a principal of a lobbyist, and what is the value of the gift?

As to the first issue, we find that the playing of the greeting would be a gift to the Governor. See CEO 08-2 (Attorney General appearing in public service announcements), in which we stated:


In CEO 05-11, cited in your inquiry, we determined that an invitation to members of the Legislature or other public officers or employees to appear in public service announcements promoting the Lifeline and Link-Up programs would constitute a gift from BellSouth Telecommunications and the Office of Public Counsel, and thus could not, under Section 112.3148(4)&(5), Florida Statutes, be extended to officials who were lobbied, or whose agencies were lobbied, by BellSouth, if the cost of production and airtime of the announcements amounted to more than $100. In the opinion, we found that an official's receipt of the free exposure, via appearance in the public service announcements, constituted a "gift" to the official within the meaning of the law, reasoning that while the advertising was clearly "on behalf of" the public programs or public purpose (there, Lifeline and Link-Up telephone programs for low-income persons/DCF clients), it clearly was made available "on behalf of" the officials serving as spokespersons as well. Likewise, we are persuaded that the situation described in your inquiry would constitute a gift to you, via the free exposure and publicity you will receive, in that while the announcements will be for a public purpose or worthy cause (promotion/opportunity/recognition regarding Florida women), they clearly will be made for an official serving as spokesperson as well.


Later, in CEO 08-29, we made a similar determination regarding a city commissioner appearing in beach anti-littering public service announcements, of a length of approximately thirty seconds, shown in movie theaters prior to the feature presentation.


As to the second issue, you acknowledge that the Authority is a principal of a lobbyist.3


As to the third issue, the value of the gift ("airtime" from the Authority for the greetings), we find that it is one hundred dollars, or less--an amount inadequate to trigger the prohibition of Section 112.3148(4). Valuation of gifts is addressed in Section 112.3148(7)(a), Florida Statutes, which provides:


The value of a gift provided to a reporting individual . . . shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection . . . . If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift.


In the instant situation, there is no indication that playing the greetings would cost the donor (Authority) anything at all. Further, while in a strict sense the Authority's acquiring, having, and using its greetings-playing equipment might not be an "additional expense required as a condition precedent to eligibility of the [Authority] to purchase or provide a gift [the airtime]" to the Governor, expenses of the equipment certainly are "primarily for the benefit of the [Authority]."

Thus, under the material circumstances presented, we find that the provision of airtime on the shuttles by the Authority to the Governor is not prohibited4 by Section 112.3148, Florida Statutes.

Turning to the matter of whether the greetings airtime would constitute an executive branch expenditure prohibited by Section 112.3215(6)(a), Florida Statutes, the law provides:


Notwithstanding s. 112.3148, s. 112.3149, or any provision of law to the contrary, no lobbyist or principal shall make, directly or indirectly, and no agency official, member, or employee shall knowingly accept, directly or indirectly, any expenditure. [Section 112.3215(6)(a), Florida Statutes.]


"Expenditure" means any payment, distribution, loan, advance, reimbursement, deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying . . . . [Section 112.3215(1)(d), Florida Statutes.]


"Lobbies" means seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement or an attempt to obtain the goodwill of any agency official or employee . . . . [Section 112.3215(1)(f), Florida Statutes.]


CEO 08-2, issued to the then-Attorney General, is the only one of our "free publicity" opinions, cited above, which addresses "expenditures," in addition to addressing "gifts." This is because CEO 05-11 was issued prior to enactment of the expenditure prohibition and because CEO 08-29 concerned an official at the local government level, with the expenditure prohibition applying only at the State level. However, CEO 08-2 is of little guidance here because it focused not on whether the publicity was an "expenditure," but rather on the identity of the donor.

We find that the Authority's playing of the Governor's greetings on its shuttles will not constitute an expenditure prohibited by Section 112.3215(6)(a). Although the expenditure prohibition of Section 112.3215(6)(a), unlike the gifts law prohibition of Section 112.3148(4), does not have a specific exception for gifts from certain government entity principals or their lobbyists made for a public purpose, under these particular circumstances a similar result is appropriate. In CEO 06-6 and CEO 06-7, Question 5, we, consistent with the Interim Lobbying Guidelines for the House and Senate issued January 20, 2006, construed the exceptions to Section 112.3148 applicable to gifts from relatives and meals in connection with service on a board of directors as also applicable to Section 112.3215. Similarly, in the context of the specific facts you present, we conclude that the publicity associated with the recorded greetings would not be a prohibited expenditure under Section 112.3215.

Accordingly, under the situation presented in your inquiry, we find that neither Section 112.3148, nor Section 112.3215, Florida Statutes, prohibit the Tampa Airport Authority's playing greetings from the Governor on airport shuttle buses; and we find that the airing of the greetings is not a reportable gift under Section 112.3148.


ORDERED by the State of Florida Commission on Ethics meeting in public session on June 15, 2012 and RENDERED this 20th day of June, 2012.


____________________________________

Susan Horovitz Maurer,Chair


[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

[2]You relate that currently the airport runs similar greetings recorded by Tampa's mayor and previously ran greetings from the captain of Tampa Bay's NHL team.

[3]A government entity, including an airport authority, can be a principal of a lobbyist. Such a status is not limited to private sector persons or entities. See CEO 94-38, Section 112.3148(6), Florida Statutes, and CE Form 10 (Annual Disclosure Of Gifts From Governmental Entities).

[4]In addition, we note that if the value of the airtime was more than one hundred dollars, it still could be accepted, but would have to be reported on CE Form 10. Your inquiry demonstrates a public purpose for both the giving and the receipt of the airtime. Section 112.3148(6), Florida Statutes; Commission Rule 34-13.320(2), Florida Administrative Code.