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Page 1ttp://www.ethics.state.fl.us/Opinions/92/CEO%2092-012.htm

CEO 92-12 -- March 6, 1992

GIFTS AND HONORARIA

GIFT AND HONORARIA ACCEPTANCE/DISCLOSURE

To: Thomas M. Beard, Chairman, Florida Public Service Commission, (Tallahassee)SUMMARY:

Where a Public Service Commission employee travels to audit the recordsof a utility company, where the employee is reimbursed for his travelexpense by his agency, and where the utility then reimburses the agency forthe employee's expense, the employee has not received a gift under Section

112.3148, Florida Statutes. Similarly, where an employee travels to ameeting sponsored by a Federal or another State agency, where theemployee is reimbursed for his travel expense by the agency, and where theagency is then reimbursed for the employee's expense by the Federal orother State agency, the employee has not received a gift which must bedisclosed pursuant to Section 112.3148, Florida Statutes. Where a PublicService Commission Commissioner or employee is invited to speak at afunction not sponsored by a utility or party to a pending proceeding, wherethe Commissioner or employee is reimbursed by the agency for his or her

travel expense in accordance with Section 112.061, Florida Statutes, andwhere the agency then seeks reimbursement for this expense from theevent's host, neither the Commissioner nor the employee has received anhonorarium or expenses related to an honorarium event pursuant to Section112.3149, Florida Statutes. Where a Public Service CommissionCommissioner serves on the advisory council of a nonprofit corporationfunded by electric utilities to direct research, development, anddemonstration of new technology, and where the Commissioner accepts

reimbursement from the nonprofit corporation for travel expenses incurredin attending advisory council meetings, such reimbursement may beaccepted by the Commissioner and disclosed as a gift pursuant to Section112.3148, Florida Statutes. Where the Commissioner travels to advisorycouncil meetings at public expense and is reimbursed by the Commission inaccordance with Section112.061, Florida Statutes, and where the nonprofitcorporation reimburses the Commission for this expense, such

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reimbursement does not constitute a gift to the Commissioner which mustbe disclosed. As the nonprofit corporation neither directly nor indirectlyowns or controls any utility regulated by the agency, nor is either anaffiliate or subsidiary of any utility regulated by the agency, Section350.041, Florida Statutes, is not violated where a Commissioner serves onthe nonprofit corporation's advisory council and is reimbursed for his travel

expense in attending advisory council meetings. CEO's 91-57, 91-46, 91-33, and 91-21, are referenced.

QUESTION 1:

Where a Florida utility reimburses the Florida Public Service Commission(PSC) for the cost of a PSC employee's travel and lodging expenses, wherethe employee is performing an audit of the utility's out-of-state records, andwhere PSC rules authorize a utility to reimburse the PSC under suchcircumstances, does such reimbursement constitute a gift which must bereported by the employee?

Question 1 is answered in the negative.

In your letter of inquiry you advise that when a PSC employee performs an aud

on a Florida utility whose records are kept out-of-state, the employee pays his own wasubmits a travel voucher to the agency, and is paid by the State in accordance with th

provisions of Section 112.061, Florida Statutes. Thereafter, the PSC's Division Administration bills the utility for the amount expended on behalf of the employee. Yoquestion whether this situation implicates the provisions governing gifts contained Section 112.3148, Florida Statutes.

You further relate that the PSC's Location and Preservation of Records rulauthorize this process, and you reference Florida Administrative Code Rules 25-4.02(telephone), 25-6.015 (electricity), and 25-7.015 (gas). For example, Rule 25-6.015(2F.A.C., states:

Any utility authorized to keep its records outside ofthe state shall reimburse the Commission for the reasonabletravel expense of the Commission's representative duringany out-of-state audit.

While we acknowledge the existence of these regulations, we recognize that we do nhave the authority to determine the legality or appropriateness of the Public Servic
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Commission's rules in this regard. Nonetheless, we are able to render an opinioconcerning whether or not the employee has received a gift in this situation.

Although not stated in your letter, we will assume for purposes of this opinion ththe PSC employee discussed herein is considered a "specified state employee" pursuant Section 112.3145(1)(b)6, Florida Statutes, and thus, is a "reporting individual" fpurposes of Section 112.3148, Florida Statutes.

Section 112.3148(4), Florida Statutes, provides in relevant part:

A reporting individual or procurement employee orany other person on his behalf is prohibited from knowinglyaccepting, directly or indirectly, a gift from a politicalcommittee or committee of continuous existence, as definedin s. 106.011, or from a lobbyist who lobbies the reportingindividual's or procurement employee's agency, or directly or

indirectly on behalf of the partner, firm, employer, orprincipal of a lobbyist, if he knows or reasonably believesthat the gift has a value in excess of $100; however, such agift may be accepted by such person on behalf of agovernmental entity or a charitable organization. If the giftis accepted on behalf of a governmental entity or charitableorganization, the person receiving the gift shall not maintaincustody of the gift for any period of time beyond thatreasonably necessary to arrange for the transfer of custody

and ownership of the gift.This section would prohibit acceptance by the employee of a gift valued in excess of $10from a lobbyist or a principal or employer of a lobbyist, unless accepted on behalf ofgovernmental entity or charitable organization.

Section 112.3148(2)(b), Florida Statutes, provides:

'Lobbyist' means any natural person who, for

compensation, seeks, or sought during the preceding 12months, to influence the governmental decisionmaking of areporting individual or procurement employee or his agencyor seeks, or sought during the preceding 12 months, toencourage the passage, defeat, or modification of anyproposal or recommendation by the reporting individual or

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procurement employee or his agency. With respect to anagency that has established, by rule, ordinance, or law, aregistration or other designation process for persons seekingto influence decisionmaking or to encourage the passage,defeat, or modification of any proposal or recommendationby such agency or an employee or official of the agency, the

term "lobbyist" includes only a person who is required to beregistered or otherwise designated as a lobbyist inaccordance with such rule, ordinance, or law or who wasduring the preceding 12 months required to be registered orotherwise designated as a lobbyist in accordance with suchrule, ordinance, or law.

With regard to the utility company, although you have not indicated whether it employslobbyist who lobbies the PSC, we presume for purposes of this opinion that the utility considered to be the principal of a "lobbyist" as defined in Section 112.3148(2)(b), FloridStatutes.

Section 112.312(12)(a), Florida Statutes, provides the following definition of"gift":

'Gift,' for purposes of ethics in government andfinancial disclosure required by law, means that which isaccepted 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 adonee, directly, indirectly, or in trust for his benefit or byany other means, for which equal or greater consideration isnot given, including:

7. Transportation, lodging, or parking.8. Food or beverage, other than that consumed at a

single sitting or event.Gift does not include:1. Salary, benefits, services, fees, commissions, or

expenses associated with the recipient's employment.2. Food or beverage consumed at a single sitting or

event.Section 112.3148(5), Florida Statutes, provides:

A political committee or a committee of continuous

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existence, as defined in s. 106.011; a lobbyist who lobbies areporting individual's or procurement employee's agency; thepartner, firm, employer, or principal of a lobbyist; or anotheron behalf of the lobbyist or partner, firm, principal, oremployer of the lobbyist is prohibited from giving, eitherdirectly or indirectly, a gift that has a value in excess of

$100 to the reporting individual or procurement employee orany other person on his behalf; however, such person maygive a gift having a value in excess of $100 to a reportingindividual or procurement employee if the gift is intended tobe transferred to a governmental entity or a charitableorganization.

In CEO 91-46, we opined that where a public officer's travel is paid for by his ow

agency, he has not received a gift where a valid public purpose exists for the gifHowever, in CEO 91-21, we opined that a supervisor of elections had received a gwhich could be accepted on behalf of a governmental entity where she traveled at publexpense to view the factory of a voting machine manufacturer, and where thmanufacturer then reimbursed the public agency which paid for the trip. Here, where thPSC employee travels at public expense to perform an audit on a utility company's recordand where the utility company reimburses the PSC for the employee's expense, we are the view that the PSC, not the employee, has received a gift. Further, as the gift statuimposes no reporting requirement on governmental entities which receive gifts fro

lobbyists, the PSC would not be required to disclose as a gift pursuant to Sectio112.3148, Florida Statutes, those funds it receives from utility companies who reimburthe PSC for audit expenses.

Question 1 is answered accordingly.QUESTION 2:

Where a PSC employee travels to a meeting sponsored by a Federal orother State agency, where the employee is reimbursed by the PSC for his

travel expenses pursuant to Section 112.061, Florida Statutes, and where thePSC seeks reimbursement from the Federal or State agency for itsemployee's travel expenses, has the employee received a gift which must bedisclosed pursuant to Section 112.3148, Florida Statutes?

Question 2 is answered in the negative.
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In your letter of inquiry you advise that where a PSC employee travels to a meetin

sponsored by a Federal agency or another State agency, the employee pays his own wasubmits a travel voucher to the PSC in accordance with Section 112.061, Florida Statuteand is then reimbursed by the agency for his travel expenses. Thereafter, you advise, thPSC's Division of Administration may seek reimbursement for the employee's expens

from the Federal or State agency which sponsored the meeting. You question whether thsituation constitutes a gift to the PSC employee which must be disclosed pursuant Section 112.3148, Florida Statutes?

Under the rationale contained in our response to Question 1, the employee has nreceived a gift which must be disclosed pursuant to Section 112.3148, Florida StatuteAlthough the PSC may have received a gift from the Federal or other State agencSection 112.3148, Florida Statutes, does not impose a reporting requirement on publagencies which receive gifts.

Question 2 is answered accordingly.QUESTION 3:

Where a PSC Commissioner or employee is invited to be a speaker at anevent which is not sponsored by a utility or a party to a pendingproceeding, where the Commissioner or employee pays his or her ownexpenses, submits a travel voucher to the PSC for reimbursement, andwhere the PSC then seeks reimbursement from the event's host, has the

Commissioner or employee received an honorarium or expenses related toan honorarium event pursuant to Section 112.3149, Florida Statutes?

Under the facts presented, Question 3 is answered in the negative.

You have questioned whether a PSC Commissioner or employee has received a

honorarium or expenses related to an honorarium event where they are invited to speak an event which is not sponsored by a utility or a party to a proceeding pending before thPSC, where they travel at their own expense, submit a travel voucher to the PSC

accordance with Section 112.061, Florida Statutes, are thereafter reimbursed by the PSCand where the PSC's Division of Administration then seeks reimbursement from the hoof the event.

Section 112.3149(1)(a), Florida Statutes, defines "honorarium" as

a payment of money or anything of value, directly orindirectly, to a reporting individual or procurement

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employee, or to any other person on his behalf, asconsideration for:

1. A speech, address, oration, or other oralpresentation by the reporting individual or procurementemployee, regardless of whether presented in person,recorded, or broadcast over the media.

2. A writing by the reporting individual orprocurement employee, other than a book, which has been oris intended to be published.The term 'honorarium' does not include the payment forservices related to employment held outside the reportingindividual's or procurement employee's public positionwhich resulted in the person becoming a reporting individualor procurement employee, any ordinary payment or salary

received in consideration for services related to the reportingindividual's or procurement employee's public duties, acampaign contribution reported pursuant to chapter 106, orthe payment or provision of actual and reasonabletransportation, lodging, and food and beverage expensesrelated to the honorarium event for a reporting individual orprocurement employee and spouse.

The issue then, is whether the reimbursement that the PSC seeks from the even

host constitutes an indirect honorarium to the PSC Commissioner or employee. It is oview that under the circumstances presented, the PSC Commissioner or employee hreceived neither an honorarium nor expenses related to an honorarium event. Instead, thPSC Commissioner or employee has been reimbursed for his or her travel by the PSCAlthough the PSC's Division of Administration may later seek reimbursement of thexpense from the host, Section 112.3149, Florida Statutes, governs honoraria honorarium event related expenses received by reporting individuals or procuremeemployees. It does not address situations where a State agency, in this case the PublService Commission, is reimbursed by the sponsor of an event for the expense that th

State agency incurred in sending one of its officers or employees to speak at a functionThus, neither the PSC Commissioner nor the PSC employee has received an honorarium honorarium event related expenses which must be disclosed pursuant to Section 112.314Florida Statutes.

Question 3 is answered accordingly.

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QUESTION 4:

Where a PSC Commissioner serves as a member of an advisory council to aNational nonprofit organization that is funded by electric utilities, andwhere the advisory council pays for the Commissioner's travel expenseswhen he or she travels to a meeting of the advisory council, has the

Commissioner received a gift which is subject to the provisions of Section112.3148 or Section 350.041, Florida Statutes?

Your question is answered in the affirmative as to a gift which must be disclose

and in the negative as to a violation of Section 350.041, Florida Statutes.

We are advised that the Electric Power Research Institute (EPRI) is independent, private, nonprofit corporation which is supported financially bapproximately 660 U.S. electric utilities through voluntary contributions. The EPRI plaand manages a program of research, development, and demonstration that assismember utilities and benefits their customers in meeting future electricity needs in thmost cost-effective and environmentally acceptable way. This research is carried out bhundreds of individual organizations, primarily industrial and commercial firmuniversities, utilities, and government laboratories. You advise that according to EPRstaff, EPRI does not take positions on policy issues and does not try to influence anregulatory body regarding the merits of its research.

We are further advised that the EPRI Advisory Council, which consists of twenty

five individuals representing government, labor, education, science, environmental, anbusiness concerns, provides a link between the EPRI Board of Directors and the generpublic. Seven members of the Advisory Council are state utility regulators appointed bthe president of the National Association of Regulatory Utility Commissioners, and thother members are appointed by the EPRI. Members of the Advisory Council areimbursed by the EPRI for the travel expenses they incur in attending meetings of thAdvisory Council. Where a PSC Commissioner has been appointed to serve as a membof the EPRI Advisory Council and is reimbursed by the EPRI for his travel expenses, yoquestion whether any provision contained in Section 112.3148, or Section 350.041, Florid

Statutes, is implicated.With regard to Section 112.3148, Florida Statutes, we are of the view that the PS

Commissioner has received a gift where he or she is reimbursed by the EPRI for the travexpenses incurred when attending Advisory Council meetings. In CEO 91-57, Question we stated:

Notwithstanding the 'quid pro quo' concept contained
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in the definition of 'gift' . . . we are of the view that at aminimum, disclosure should be the goal for the reportingofficial who receives any of the listed items contained in thedefinition of 'gift.' . . . If it is included in that list, then ournext question will be whether it is one that can be acceptedby the reporting individual.

Therefore, based upon CEO 91-57, we find that the travel expenses which the PSCommissioner receives from the EPRI constitute a gift. However, although the EPRI funded by electric utilities, including, presumably, electric utilities which are regulated bthe PSC and which employ lobbyists to lobby the PSC, we do not consider the travreimbursement received by the Commissioner to be prohibited pursuant to Sectio112.3148(4), Florida Statutes. Based upon the facts before us, there is no basis to concludthat the travel expenses paid by EPRI are an indirect gift from a lobbyist or the employ

or principal of a lobbyist who lobbies the PSC. As a gift which may be accepted, thotravel expenses received by the PSC Commissioners from the EPRI as a member of thEPRI Advisory Council would be required to be disclosed quarterly. We havpromulgated CE Form 9 for this purpose.

Alternatively, where the PSC Commissioner travels to the Advisory Councmeeting at public expense pursuant to Section 112.061, Florida Statutes, and where thPSC then seeks reimbursement from the EPRI for the expenses incurred by thCommissioner, the reimbursement would constitute a gift to the PSC, not to thCommissioner, and under the rationale contained in Questions 1 and 2 above would n

have to be disclosed by the Commissioner as a gift.Turning now to Section 350.041, Florida Statutes, this statute includes a code

conduct applicable to members of the Public Service Commission and is in addition to thprovisions contained in Chapter 112, Part III, Florida Statutes. This Commission hpreviously had the opportunity to render an advisory opinion involving Chapter 35Florida Statutes. See CEO 91-33. You question whether a PSC Commissioner's servion the EPRI Advisory Council and the reimbursement for travel expenses in attendinmeetings of the Council, conflict with any provision contained in Section 350.041, FloridStatutes.

Section 350.041, Florida Statutes, provides in relevant part:

(a) A commissioner may not accept anything fromany business entity which, either directly or indirectly, ownsor controls any public utility regulated by the commission,from any public utility regulated by the commission, or from
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any business entity which, either directly or indirectly, is anaffiliate or subsidiary of any public utility regulated by thecommission.

(b) A commissioner may not accept any form ofemployment with or engage in any business activity with anybusiness entity which, either directly or indirectly, owns or

controls any public utility regulated by the commission, anypublic utility regulated by the commission, or any businessentity which, either directly or indirectly, is an affiliate orsubsidiary of any public utility regulated by the commission.

(d) A commissioner may not accept anything from aparty in a proceeding currently pending before thecommission.

There is no indication that by serving on the Advisory Council and acceptin

reimbursement for travel expenses incurred in attending meetings of the Council thCommissioner has contravened the provisions contained in Section 350.041, FloriStatutes. From the information you have provided, there is no indication that the EPReither directly or indirectly owns any public utility regulated by the PSC or is an affiliaor subsidiary of any utility regulated by the PSC. Rather, the EPRI is an independennonprofit corporation supported by approximately 660 U.S. utilities, including investoowned companies operated in Florida. We do not view this situation as a subterfugwhich permits utility companies regulated by the PSC to indirectly provide gift

employment, or a business activity to PSC Commissioners.Question 4 is answered accordingly.

Documents

CEO 92-12 -- March 6, 1992