CEO 16-3 — April 20, 2016
EXECUTIVE BRANCH LOBBYING
AGENCY OFFICIALS AND EMPLOYEES ATTENDING EVENTS SPONSORED BY PRINCIPAL OF LOBBYISTS
To: Mr. Darrin Lim, Esquire (San Rafael, California)
Section 112.3215(6), Florida Statutes, prohibits lobbyists and principals from making, and executive branch agency officials and employees who file financial disclosure from accepting, any expenditures made for the purpose of lobbying. Moreover, Section 112.3148(4), Florida Statutes, prohibits a reporting individual or procurement employee from accepting a gift valued in excess of $100 from a lobbyist who lobbies the reporting individual's agency or from the principal of such a lobbyist. However, reporting individuals and procurement employees subject to the expenditure and/or gifts requirements are not prohibited from attending, at no cost, purely informational briefings and gatherings at which the only thing of value they receive is the oral and written information distributed, hosted by companies which are the principals of executive branch lobbyists. CEO 06-4, CEO 06-17, and CEO 13-3 are referenced.
Has a principal of lobbyists of the executive branch made an expenditure prohibited by Section 112.3215(6), Florida Statutes, or provided gifts prohibited by 112.3148(4), Florida Statutes, when it hosts free educational briefings and events for reporting individuals and procurement employees?
Under the specific circumstances addressed herein, your question is answered in the negative.
Through your letter of inquiry and additional information provided to our staff, you relate that you serve as political law compliance counsel to various companies that engage executive branch lobbyists in Florida. You state that the sales and marketing departments of these principals host "free educational briefings and events" designed to provide information to prospective customers—including executive branch procurement employees and reporting individuals—regarding the principals' products and services. You explain that these events are sponsored entirely by private companies that are the principals of lobbyists and are held in centrally-located dedicated meeting spaces, such as hotel conference rooms or onsite company meeting rooms, with the goal of potentially influencing a decision of the agency in the area of policy or procurement. You further state that these events often involve guest speakers that are selected by, or are employees of, the principals whom you represent. You indicate that no food or beverages are served during these events. While neither food, beverages, nor any "intangible" thing of value (such as an opportunity to meet a celebrity or experience a cruise or helicopter ride) is provided, there are nevertheless costs to the principal (room, chair, and table rentals, costs of printing, and the like) associated with these events. Accordingly, you ask whether attendance at these free events by reporting individuals and procurement employees implicates an expenditure and/or prohibited gift. Finally, you relate that in your view such educational events should be exempt from the definition of "expenditure" and/or "gift" as they serve a public purpose and thus, any benefits gleaned therein are gifts to the official's governmental entity and not to any individual.
Section 112.3148(4), Florida Statutes, provides:
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 vendor doing business with the reporting individual's or procurement employee's agency, a political committee as defined in s. 106.011, or 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.
The definition of "gift" relevant to this inquiry is contained in Section 112.312(12)(a), Florida Statutes, which provides:
"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 within 90 days ...
Section 112.3215(6)(a), Florida Statutes, provides:
Notwithstanding s. 112.3148, s. 112.3149, or any other 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.
"Expenditure" is defined in Section 112.3215(1)(d), Florida Statutes, as "a payment, distribution, loan, advance, reimbursement, deposit, or anything of value made by a lobbyist or principal for the purpose of lobbying."
We have yet to consider an inquiry such as yours, one involving a scenario in which reporting individuals or procurement employees will not receive any food, beverage, or similar items, but rather, a scenario in which all they will receive is a name tag, informational materials, and the opportunity to sit in a meeting room and hear about the value of the principal's products. In CEO 06-17, we found that reporting individuals of the executive branch attending an Employee Benefits Fair were prohibited by Section 112.3215(6)(a), Florida Statutes (the "expenditure ban"), from accepting inexpensive promotional items (pens, notepads, coffee, key chains, etc.) from executive branch lobbyists or their principals, but were not prohibited from accepting informational handouts and brochures concerning benefits available to them in their private capacity. We reasoned that although the promotional items were of nominal value they were given for the purpose of lobbying, in that they were provided to engender goodwill, and attempting to obtain goodwill constitutes lobbying, as the term is defined in Section 112.3215(1)(f), Florida Statutes. We reasoned that the informational handouts and brochures, on the other hand, were not given for the purpose of engendering goodwill or influencing a public agency's decision making, but rather were provided to influence or inform the private capacity decision making of State employees, regarding their personal benefits (e.g., pretax insurance products).
In the specific situation you present, nothing is being given for the personal benefit of the reporting individuals who would attend the educational events; rather, all of the costs would go to providing education or information. Unlike the situation in CEO 06-17, in which promotional items were also given, there would be nothing given to engender the goodwill of the reporting individuals. However, also unlike CEO 06-17, in your situation the information provided at the events is offered specifically in an effort to influence the procurements of products of the principals of the lobbyists who put on the events by the agencies of reporting individuals attending the events, rather than in an effort to influence the reporting individuals' private choices. Thus, all of the associated expenses are for the purpose of lobbying. Nevertheless, we are persuaded that it is not the purpose of the expenditure ban to prohibit the receipt of mere information by reporting individuals, from lobbyists and their principals, when the information is unaccompanied by anything consumable by, or personally beneficial to, the reporting individual. We see no material distinction between a lobbyist providing information to a reporting individual at the State employee's public workplace, and a lobbyist providing the same information at an event as described in your inquiry.
A similar "expenditure ban" applies to members of the Legislature pursuant to Section 11.045(4), Florida Statutes. Although we do not administer that statute, we have found the interpretation of the House and Senate with respect to its provisions informative. See, for example, CEO 06-4. With respect to an issue similar to that present here, Senate Rule 9,1 which addresses "Communication Expenses" states:
The expenditure prohibitions in the new law do not reach expenditures made by a lobbyist or principal for items such as "media advertising," "publications," "communications," and "research."
Expenditures for researching, gathering, collating, organizing, providing, or disseminating information for the exclusive purpose of "active lobbying" (influencing or attempting to influence legislative action through oral or written communication) are necessary for Floridians to be able to "instruct their representatives."
Accordingly, we find that a State employee subject to the expenditure ban of Section 112.3215(6)(a), has not received a prohibited expenditure when he or she attends an event put on by executive branch lobbyists or their principals under the circumstances described—the "plain vanilla" presentation of information in a meeting or conference setting. However, we caution that this opinion should not be read to exclude from the definition of "expenditure" things such as helicopter rides, day cruises, or other things of value, simply because information is simultaneously being provided.
Turning now to Section 112.3148(4), Florida Statutes, this provision prohibits a reporting individual or procurement employee 2 from accepting a gift valued in excess of $100 from a lobbyist who lobbies his or her agency or from the principal of such a lobbyist. As discussed above, the educational events and gatherings at issue are coordinated, conducted, and paid for by the principals of lobbyists for the purpose of influencing the decisions of agency officials and employees in the area of policy or procurement. We are not inclined to adopt the reasoning urged by the requestor and create an exemption to the definition of "gift" for items that serve a "public purpose" as we can easily envision circumstances in which such a broad exception could be abused. While it is true that Section 112.3148 allows a reporting individual or procurement employee to accept a gift on behalf of his agency, we have specifically rejected the argument that a thing of value is a gift to the agency simply because a public purpose is served. See, CEO 13-3 (finding that a mayor's travel, paid for by others, was a gift to the mayor, notwithstanding that there was a public purpose for the gift).
While we decline to exclude these events and the materials provided there from the definition of "gift," and decline to view them as gifts to an agency, we are nevertheless persuaded that, under the specific facts and circumstances before us, they may be accepted. There is no value, under Section 112.3148, Florida Statutes, to the official's being able to sit in a conference or meeting room and listen to a presentation, and the value of any written materials provided to attendees is extremely unlikely to exceed $100.3 Under such circumstances the reporting individual or procurement employee would not have received a gift prohibited by Section 112.3148, Florida Statutes.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 15, 2016, and RENDERED this 20th day of April, 2016.
Stanley M. Weston, Chair
The expenditure ban was enacted in 2005. On January 20, 2006, the House and Senate released the Interim Lobbying Guidelines interpreting the changes in the law as they applied to the Legislature. These guidelines were subsequently incorporated into Senate Rule 9.
Section 112.3148(2)(e), Florida Statutes, defines "procurement employee" to mean:
any employee of an officer, department, board, commission, council, or agency of the executive branch or judicial branch of state government who has participated in the preceding 12 months 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 in any fiscal year.
If the value of informational material provided to a reporting individual or procurement employee by a lobbyist or their principal exceeds the value of $25, it must be reported to the Commission on Ethics in accordance with the requirements of Section 112.3148(5)(b), Florida Statutes.