CEO 99-6 -- April 22, 1999
GIFT ACCEPTANCE AND DISCLOSURE
REPUBLICAN PARTY HOLDING FUNDRAISER AT DISNEY WORLD
TO: Mr. Eric Buermann, General Counsel, Republican Party of Florida (Tallahassee)
The definition of Agift@ in Section 112.312, Florida Statutes, excludes contributions or expenditures made pursuant to Chapter 106, Florida Statutes, and any other contribution or expenditure by a political party. Therefore, the hotel rooms, green fees, golf carts, and admission tickets to theme parks given to the Republican Party of Florida by Walt Disney World would not be considered Agifts@ subject to the provisions of Section 112.3148, Florida Statutes, when the Republican Party conveys them to public officials, including legislators, who participate in the Party=s golf tournament/fundraiser.
Are the gift acceptance and disclosure provisions of Section 112.3148, Florida Statutes, applicable where the Republican Party holds a fundraiser at Disney World and where Disney World provides certain items, including green fees, golf carts, hotel rooms, and admission tickets, to the Party for its distribution to donors and participants at the event?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry you relate the Republican Party of Florida (Party) is planning a golf tournament/fundraiser, tentatively scheduled for June at Walt Disney World (Disney) in Orlando. Disney may provide items to the Party in conjunction with the event, and the Party may then provide these items to its donors and participants.
We are advised that the Party is solely responsible for planning, paying for, and managing the event and that it will be the beneficiary of any contribution. Disney has offered to make an in-kind contribution to the Party consisting of a number of hotel rooms, greens fees, golf carts, and admission tickets to its theme parks. In turn, the Party will make available these items to some, but not all, donors and participants at the event. Further, you advise that most of the participants at the tournament will be donors, but some will be members of the Legislature or other public officials who will not be asked to make a contribution to the Party. It is anticipated that most of the public officials will make use of at least some portion of the items contributed by Disney. You acknowledge that the fair market value of the Disney-contributed items is likely to exceed $100 and that Disney is the employer of and/or principal of lobbyists who lobby these officials. You also state that Disney=s proposed contributions would be made under the following conditions:
1. Contributions would be made to the Party and not to individuals;
2. None of the contributions would be Aearmarked@ or designated by Disney for any particular participant or exclusively for members of the Legislature or other public officials;
3. Disney would have no knowledge of the identity of the ultimate beneficiaries or users of its donations (other than through the routine registration process at a hotel or golf course);
4. The Party, alone and without consultation with Disney or third parties, will be responsible for the distribution of contributed items;
5. Other persons, in addition to legislators and public officials, would also use the contributed items; and
6. Disney=s donations, at their full, fair market value, would be reported by the Party on its quarterly report filed pursuant to Chapter 106, Florida Statutes.
Under these circumstances, you question whether the situation described herein would violate Section 112.3148, Florida Statutes, or create reporting obligations for the donors and recipients. This statute has gift acceptance and disclosure provisions which, essentially, prohibit reporting individuals from knowingly accepting, directly or indirectly, gifts from lobbyists who lobby their agency or from the lobbyists= principals or employers where the value of the gift exceeds $100. Gifts with a value in excess of $100 from non-prohibited donors can be accepted, but have attendant reporting obligations.
Section 112.312(12)(b)2., Florida Statutes, excludes from the statutory definition of Agift@:
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. [E.S.]
Clearly, the Legislature intended that, whether or not reported by a political party pursuant to the requirements of the campaign financing laws in Chapter 106, Florida Statutes, an expenditure or contribution that is made by a political party will not constitute a prohibited or reportable gift. This allows the parties to engage in party-building activities with the help of the elected public officials who lead their party, without the potential consequence that the officials= expenses could not be paid by the party and that the officials would have to pay for their own expenses.
The fact that something is received by a public official directly from a political party does not end our inquiry under the gift law, however, as the gift law also addresses Aindirect@ gifts. Just as an indirect gift from a lobbyist through an official=s relative may be prohibited, even though a gift from a relative is exempted from the gift law, similarly a gift from a lobbying entity through a political party may constitute a prohibited indirect gift.
Here, however, under the circumstances you describe we conclude that the Party, not Disney indirectly, is providing the items to the public officials and, therefore, that the items are not Agifts@ for purposes of Section 112.3148, Florida Statutes. Rule 34-13.310(6)(c), F.A.C., lists a number of factors that should be considered in determining whether an indirect gift has been made:
(i) The existence or nonexistence of communications by the donor indicating the donor's intent to make or convey the gift to the reporting individual or procurement employee rather than to the intervening third person;
(ii) The existence or nonexistence of any relationship between the donor and the third person, independent of the relationship between the donor and the reporting individual or procurement employee, that would motivate a gift to the third person;
(iii) The existence or nonexistence of any relationship between the third person and the reporting individual or procurement employee that would motivate the gift.
(iv) Whether the same or similar gifts have been or are being provided to other persons having the same relationship to the donor as the third person;
(v) Whether, under the circumstances, the third person had full and independent decision-making authority to determine whether the reporting individual or procurement employee, or another, would receive the gift;
(vi) Whether the third person was acting with the knowledge or consent of, or under the direction of, the donor;
(vii) Whether there were or were intended any payments or bookkeeping transactions between the third person and the donor, reimbursing the third person for the gift; and
(viii) The degree of ownership or control the donor has over the third person.
In our view, under the circumstances presented here Disney=s in-kind contributions to the Party should be treated the same as if they were cash contributions; the contributions to the Party will be disclosed on the reports that the Party files with the Division of Elections pursuant to Section 106, Florida Statutes; the Party retains complete and independent control over who ultimately receives the benefit of any particular contribution; and Disney has no ownership or control over the Party. Therefore, there is no prohibition against their acceptance by the public officials who participate in the tournament/fundraiser, and neither the public officials nor the donors have reporting obligations under Section 112.3148, Florida Statutes.
Accordingly, we find that under the circumstances presented the subject contributions given to the Republican Party by Walt Disney World would not be considered Agifts@ for purposes of Section 112.3148, Florida Statutes, when the Party provides them to public officials during its golf tournament/fundraiser.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 22, 1999 and RENDERED this 28th day of April, 1999.
Charles A. Stampelos
Sec. 112.3148(1), Fla. Stat.