CEO 98-8 -- April 16, 1998
LEGAL DEFENSE FUND ESTABLISHED TO BENEFIT STATE LEGISLATOR
To: Name Withheld at Person's Request (Lake City)
A legal defense fund may be established to assist a State legislator with the payment of his legal expenses, but contributions to the fund would be considered "gifts" for purposes of Section 112.3148, Florida Statutes. The fund would be prohibited by Section 112.3148(4), Florida Statutes, from accepting contributions in excess of $100 from political committees, individuals who lobby the Legislature and their partners, firms, employers, or principals. Contributions made to it by others who are not included in the group of prohibited donors could be accepted, and those contributions that exceed $100 would have to be reported on the legislator's CE Form 9 pursuant to Section 112.3148(8), Florida Statutes. CEO's 91-37 and 91-24 are referenced.
How would the gift law contained in Section 112.3148, Florida Statutes, treat contributions made to a fund established to assist a legislator with his personal legal expenses?
Your question is answered as follows.
In your letter of inquiry, you relate that you are a member of the Florida Legislature and you question whether and how the gift law contained in Section 112.3148, Florida Statutes, would treat a legal defense fund established to assist with the payment of your personal legal expenses. You indicate that the fund would be established by someone other than yourself or another public official and that person would solicit contributions and direct legal disbursements to the attorneys on your behalf. No other details concerning the fund were provided with your letter.
The definition of a "gift" in Section 112.312(12)(a), Florida Statutes, 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 or indirectly, or in trust for the donee's benefit or by any other means, for which equal or greater consideration is not given, including:
. . .
3. Tangible or intangible personal property. . . . [E.S.]
In CEO 91-37, we opined that cash contributions to help underwrite a city councilman's newsletter to his constituents would constitute "gifts" for purposes of the gift law, even though "cash" was not explicitly listed in the definition of a "gift." In that opinion, we also noted that the city councilman would be prohibited by Section 112.3148(3), Florida Statutes, from soliciting contributions from political committees or from lobbyists who lobbied the city, and he was prohibited from accepting any contribution in excess of $100 from political committees or from lobbyists who lobbied the city. Contributions in excess of $100 from persons who were not considered to be "lobbyists" were permissible and were to be reported in accordance with Section 112.3148(8), Florida Statutes, on the city councilman's Quarterly Gift Disclosure form,CE Form 9.
Applying the rationale of that opinion to the situation you have described, donations to a legal defense fund established for your benefit would constitute "gifts" to you. Inasmuch as Section 112.3148(4), Florida Statutes, prohibits you or any other person on your behalf from knowingly accepting, directly or indirectly, gifts from certain donors where the value of the gift exceeds $100, the legal defense fund would be prohibited from accepting donations in excess of $100 from political committees, from lobbyists who lobby or have lobbied the Legislature within the 12 months preceding the gift, and from the partner, firm, employer, or principal of such lobbyists. Under the statutory definition of "gift", there is no distinction between a gift given directly to you and a gift given to someone else for your benefit. Therefore, the fund could not accept contributions in excess of $100 from those prohibited donors identified in Section 112.3148(4). Although those donors could contribute up to $100 to the fund, they would be required to disclose their contributions between $25 and $100 on the Donor's Quarterly Gift Disclosure form, CE Form 30, and may also have lobbyist expenditure reporting obligations pursuant to Section 11.045, Florida Statutes.
Contributions to the fund by others who are not political committees, lobbyists, or their partners, firms, employers, or principals could be accepted, and those contributions that exceed $100 would have to be reported on your Quarterly Gift Disclosure form, CE Form 9.
In rendering this opinion, we are not unmindful that there exists precedent at the Federal level that has permitted government officials to establish legal defense funds that accept contributions to assist with the official's legal expenses. In the case of the Presidential Legal Expense Trust, established in June 1994 by President and Mrs. Clinton, the terms of that Trust permitted it to accept contributions from individual U.S. citizens (but not Federal employees, corporations, labor unions, partnerships, political committees or other entities). Contributions were limited to $1,000 per eligible individual per year and, because of Federal restrictions, the Clintons were not allowed to solicit donations to the Trust. Trust documents stated that the named trustees would not engage in the solicitation of donations either. This Trust was dissolved at the end of 1997 and a new trust, known as The Clinton Legal Expense Trust, subsequently was established by former Senator David H. Pryor of Arkansas. It is different from the first trust in several respects, most notably, its trustees have the authority to solicit or use agents to solicit donations.
Returning to the facts at hand, we express no opinion on the issue of others soliciting donations to your legal defense fund as we have not been provided with sufficient detail to evaluate any proposed conduct against Section 112.3148(3), Florida Statutes, which prohibits you and other reporting individuals from soliciting gifts for your personal benefit from political committees, from lobbyists, and from the partners, principals, employers, and firms of lobbyists. However, we are of the view that the statute should not be construed to allow a reporting individual to authorize others to do that which he himself is prohibited by law from doing.
In CEO 91-24, we noted that although Federal law permitted the creation of "blind trusts," there was no such provision in State law that would permit the State Comptroller to own stocks in businesses whose subsidiaries were regulated by the Florida Department of Banking and Finance. Similarly, there is no express provision under Florida law that would permit the establishment of a trust to circumvent the prohibitions of Section 112.3148, Florida Statutes.
Accordingly, we find that a legal defense fund could be established to assist a State legislator with his personal legal expenses, but the fund would be prohibited from accepting certain donations in excess of $100 and the legislator would be required to disclose other contributions that exceed $100.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 1998 and RENDERED this 21st day of April, 1998.
Documents describing the Presidential Legal Expense Trust and The Clinton Legal Expense Trust were obtained by staff from the U.S. Office of Government Ethics.