CEO 91-37 -- July 19, 1991
CONFLICT OF INTEREST; GIFTS ACCEPTANCE
CITY COUNCILMAN SOLICITING CONTRIBUTIONS
TO PAY FOR NEWSLETTER MAILED TO CONSTITUENTS
To: Douglas P. Johnson, Councilman, City of Oakland Park
A city commissioner may solicit funds to pay for mailing newsletters to his constituents, where the newsletters contain information relating to city issues and include a disclaimer that the opinions contained in the newsletter are those of the city councilman, and that no public funds were used to pay for the newsletter. CEO's 83-15 and 84-116 are referenced. As contributions to pay for the newsletter constitute gifts for purposes of Section 112.3148, Florida Statutes, as amended by Chapter 90-502, Laws of Florida, the councilman would be prohibited from soliciting gifts from political committees and lobbyists who lobby the city, and would be prohibited from accepting gifts with a value in excess of $100 from political committees and lobbyists. Gifts obtained by the councilman could be used to compensate the political committee which proposes to do the mailing directly, but in no case could the committee contribute more that $100 towards the cost of the newsletter. Gifts exceeding $100 would have to be reported by the councilman quarterly on CE Form 9.
Would a prohibited conflict of interest be created were you, a City Councilman, to mail informational newsletters to constituents, where the cost of mailing is paid for by a private organization?
Your question is answered in the negative, subject to the conditions noted below.
In your letter of inquiry and in subsequent information provided to our staff, we are advised that you would like to send between one and twelve letters per year to your constituents, advising them of your opinion on various issues facing the City. You indicate that these letters would be informative, and would be analogous to a "state of the city" address. We are further advised that the cost of each mailing is anticipated to be approximately $2,500. To defray this expense, you question whether you would be prohibited from soliciting or accepting financial contributions from individuals and organizations, or whether a private organization which is also registered as a political action committee could be permitted to solicit contributions to pay for the expenses associated with mailing the newsletters. Finally, we are advised that the newsletter would be published on either official-looking City stationery which you have paid for yourself, or upon your business letterhead which denotes that you are an attorney engaged in the practice of law. You also indicate that you would place a disclaimer upon the newsletter indicating that the opinions reflected in the newsletter belong to you, and do not reflect City policy.
With regard to the stationery on which the newsletter is printed, you have indicated that you will not use the City's stationery, but will use stationery that contains the City logo and looks official. In order to avoid any suggestion that you are using your position in violation of Section 112.313(6), Florida Statutes, we advise that you include a disclaimer indicating that no public funds were used to pay the costs of the newsletter. You had also indicated that the stationery may reflect your status as an attorney engaged in private practice. We suggest you contact the Florida Bar for their opinion as to the appropriateness of using your business letterhead for this purpose.
Concerning the costs associated with mailing the newsletter, a factually similar situation was involved in CEO 83-15, where a state representative inquired whether she could solicit or accept financial gifts to herself personally or to her office account in order to pay for printing and mailing several informational mailings to her constituents, as long as she disclosed these gifts on her annual financial disclosure report. There, we cautioned the representative that she should be mindful of the provisions contained in Section 112.313(2), Florida Statutes, involving soliciting or accepting gifts, and Section 112.313(4), Florida Statutes, involving unauthorized compensation, before soliciting or accepting any financial gifts. We also advised that she should comply with the gifts disclosure provision contained in Section 111.011, Florida Statutes, which at that time required the disclosure of gifts valued at $25 or more. See also CEO 84-116, where we opined that no prohibited conflict of interest would be created were a city commissioner to solicit funds for the defense of a lawsuit brought against him in his official capacity.
But for significant changes to the gifts laws enacted since the issuance of CEO 83-15, the rationale of that opinion would be equally applicable to you. However, since the Legislature significantly amended the gift provisions in 1990 through the enactment of Chapter 90-502, Laws of Florida, we must consider your situation in light of these provisions.
Section 112.312(9), Florida Statutes, as amended Chapter 90-502, Laws of Florida, defines a gift as follows:
"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 his benefit or by any other means, for which equal or greater consideration is not given, including: . . .
14. Any other similar service or thing having an attributable value not already provided for in this section.
"Gift" does not include: . . .
2. Contributions or expenditures reported pursuant to chapter 106, campaign-related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political party.
As you have not indicated that the prospective contributions for the newsletter are related to a political campaign, we will assume for purposes of this opinion that they are not. Although the definition of gift does not explicitly include cash, we are of the view that the contributions you hope to receive would be considered gifts, whether they are given to you directly or to the political committee on your behalf.
The next issue we will consider is whether you may accept these gifts, and what, if any, reporting requirements are applicable. As an elected municipal officer, you are required to file annually a statement of financial interests (Form 1), pursuant to Section 112.3145(1)(a)1, Florida Statutes. You are therefore considered to be a "reporting individual" pursuant to Section 112.3148(2)(d), Florida Statutes.
Section 112.3148(3), Florida Statutes, provides:
A reporting individual or procurement employee is prohibited from soliciting any gift, food, or beverage from a political committee or committee of continuous existence, as defined in s. 106.011, or from a lobbyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift, food, or beverage is for the personal benefit of the reporting individual or procurement employee, another reporting individual or procurement employee, or any member of the immediate family of a reporting individual or procurement employee.
This provision would prohibit you from soliciting any gift from a political committee as defined in Section 106.011, Florida Statutes, or from a lobbyist who lobbies the City, where the gift is for your personal benefit. In your letter of inquiry you advised that the cost of the proposed newsletter may be paid for by a private organization. If the private organization is a political committee as that term is defined under the campaign financing laws of Chapter 106, Florida Statutes, then you would be prohibited from soliciting contributions from the subject organization. Although the proposed newsletter would inform your constituents of your position on City-related issues, we find that you would be the primary beneficiary of the proposed mailing, as it would serve as a means to enhance your name recognition and benefit you politically. Therefore, we are of the view that you should refrain from soliciting any contributions to defray the cost of your newsletter from a political committee or lobbyist pursuant to Section 112.3148(3). This provision does not prohibit you from soliciting contributions from entities who are neither political committees or lobbyists, but we suggest you keep in mind the cautionary language contained in CEO 83-15, if you solicit gifts from these persons.
Section 112.3148(4), Florida Statutes, provides:
A reporting individual or procurement employee or any other person on his behalf is prohibited from knowingly accepting, directly or indirectly, a gift from a political committee or committee of continuous existence, as defined in s. 106.011, or from 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 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.
This provision would prohibit you from accepting a gift in excess of $100 from a political committee, as well as from lobbyists who lobby the City of Oakland Park. As you have indicated that the cost of each mailing each newsletter to your constituents would be approximately $2,500, and may be provided directly by the organization, we find that you would not be able to accept such a gift if the organization is a political committee and pays the entire cost of each mailing.
If you obtain contributions from persons who are neither political committees or lobbyists, you could use those contributions to compensate the committee for the cost of the newsletter pursuant to Section 112.3148(7)(b), Florida Statutes, but in no case could the committee's contribution to the cost of the newsletter exceed $100.
As for reporting any gifts you receive, Section 112.3148(8), Florida Statutes, requires you to file quarterly a statement disclosing each gift you received in the previous calendar quarter where the value of the gift exceeds $100. We have promulgated CE Form 9 to be used for this purpose.
Your question is answered accordingly.