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04-04-2002 Agenda I. Call to Order II. Orientation III. Selection of Chairperson I Vice Chairperson IV. Staff Reports V. Other Business - Next Meeting Date VI. Adjournment In accordance with the Americans with Disabilities Act of 1990, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Office of the City Clerk, (305) 466-8901, not later than two days prior to such proceeding. Please be advised that one or more members of the A ventura City Commission may attend this meeting. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. ATTORNEYS AT LAW liLt ~ Mr., A~ ~ -.(J ~JI?/&s NINA L. BONISKE JAMIE ALAN COLE EDWARD G. GUEDES STEPHEN J. HELFMAN GILBERTO PASTORIZA JOSEPH H. SEROTA RICHARD JAY WEISS DAVID M. WOLPIN STEVEN W. ZELKOWITZ MIAMI-DADE OFFICE 2665 SOUTH BAYSHORE DRIVE SUITE 420 MIAMI, FLORIDA 33133 'OF COUNSEL March 15, 2001 GERALD T. HEFFERNAN' JOHN R. HERIN, JR. CHRISTOPHER F. KURTZ PETER A. LICHTMAN KAREN LIEBERMAN' MATTHEW H. MANDEL BERNARD S. MANDLER' ALEXANDER L. PALENZUELA-MAURI GARY I. RESNICK' NANCY RUBIN' GAIL D. SEROTA' DANA S. SCHWARTZ ARI C. SHAPIRO JEFFREY P. SHEFFEL NANCY E. STROUD' SUSAN L. TREVARTHEN CARMEN I. TUGENDER DANIEL A. WEISS' THOMAS J. ANSBRO' LILLIAN ARANGO DE LA HOZ' ALISON S. BIELER MITCHELL A. BIERMAN MITCHELL J. BURNSTEIN ELAINE M. COHEN DOUGLAS R. GONZALES TELEPHONE (305) B54-0800 TELECOPIER (305) 854-2323 WWW.WSH-FLALAW.COM BROWARD OFFICE: 3107 STIRLING ROAD, SUITE 300 FORT LAUDERDALE, FLORIDA 33312 TELEPHONE (954) 763-4242 . TELECOF'IER (954) 764-7770 The Honorable Mayor and Commissioners City of A ventura 2999 N.E. 191 Street Suite 500 A ventura, Florida 33180 Re: Gifts, Sunshine Law and Attendance at Functions Dear Mayor and Commissioners: This update is provided in connection with the election of one new City Commissioner. The purpose of this letter is to provide guidance to City Commissioners, officers, employees and board members to assure continued compliance with the Florida Sunshine Law and provisions of law pertaining to the reporting and receipt of gifts by public officers and employees. Section I of this letter will address Sunshine Law matters, while the subject of the receipt and reporting of gifts will be addressed in Section II. I. SUNSIDNR LAW A. The Provisions of the Law The Florida Sunshine Law is provided by Section 286.011, Fla. Stat. , entitled "Public Meetings and Records; Public Inspection; Criminal and Civil Penalties" and provides in subsection 1 thereof as follows: All meetings of any hoard or commission ~ state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official ... -=- Honorable Mayor and Commissioners March 15,2001 Page 2 acts are to be taken are declared to he puhlic meetings, open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings . (emphasis added) B. Applicability The City Commission, as well as committees, advisory boards or commissions created by the Cornn1ission, must comply with the Sunshine Law. The Sunshine Law prohibits two or more members of the same Commission, board, commission or body from discussing (interchange of ideas) any item or matter of public business which may come before the body upon which those two or more members both serve, except in an open public meeting, duly noticed, for which minutes are kept. Compliance with the Sunshine Law requires that reasonable notice of the meeting be given; that the meeting be open to the public; and that minutes of the meeting be kept and provided. It should be noted that the Sunshine Law also applies to advisory boards and to ad hoc committees which are created for particular purposes. For example, if a screening committee were established and composed of risk management directors from adjoining communities to help select a risk management director for the City, the Sunshine Law would apply to such ad hoc committee, unless the committee was confined to performing strictly a fact-finding role. Once an ad hoc committee is given the authority to make recommendations, screen candidates or create a short list, it is considered that the committee has gone beyond a fact-finding status and must comply with the Sunshine Law. See Krause v Reno, 366 So.2d 1244 (Fla. 3d DCA 1979) The wide sweep of the Sunshine Law forbids government board members from taking actions which may seem perfectly reasonable and be done with the best of intentions. For example, two or more members of the same board may attend a social function, ~ if any discussion of any item which may come before the board is strictly avoided, ill the social function complies with the Sunshine Law requirements of public notice, public access and the provision of minutes of the meeting. Likewise, members of the same board may attend a seminar or lecture as members .of the audience, without complying with the Sunshine Law provisions, so long as any interchange of ideas between board members upon any matter which may come before the board is strictly avoided. C. Example of Situations Which May Arise Honorable Mayor and Commissioners March 15, 2001 Page 3 Commissioners should absent themselves from the room. D. Recommendations The following recommendations are respectfully offered to Commissioners in an effort to assist in continued compliance with the Sunshine Law. These recommendations would likewise apply to City boards and committees and the members of such boards and committees. 1. Do not pass around a memorandum from one member of the Commission to another for signature, initial or check-off indicating approval or disapproval of a proposal. This may be viewed as an unlawful meeting. 2. Do not hold a social luncheon or other social gathering of two or more members of the Commission, which is not open to the public and duly noticed, unless any discussion of the business of the Commission is strictly avoided. 3. Do not utilize a staff person or any third party to create an indirect discussion or interchange between two or more Commissioners on City business. 4. Do not privately poll or canvas other Commissioners by telephone or otherwise to obtain their approval or lack of objection to the business of the Commission. (Staff should also avoid this since Commissioners may. ask what other members said and the staff response may create an indirect discussion of the public business by two or more members. Nor should staff use this approach to obtain a piece-by-piece decision of the Commission.)1 5. Even if only giving or seeking information, a Commissioner cannot talk to another member of the same Commission about any City matter which is within the scope of the business of such Commission that may come before such members, except at a duly-noticed public meeting. (A Commissioner may prepare a memorandum for inclusion in a Commission Agenda) . 6. A Commissioner may discuss City business with an individual member of a different City board not composed of members of the Commission, so long as he or she does not go from one member of that board to another member of that board communicating what has been said. 7. Please do D.Qt proceed when in doubt about whether a proposed action is allowed 1/ This does not preclude the City Manager or City Attorney from separately asking each Commissioner his or her position on an issue, so long as such process is not a substitute for any required consideration as a body and the thoughts of the members are not circulated through a liaison approach. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. ~-.... Honorable Mayor and Commissioners March 15, 2001 Page 4 under the Sunshine Law. Request the City Attorney I s opinion. Leave the room, if necessary, and protect yourself and the City. 8. A void making inspection trips with other Commissioners. Since discussion may easily ensue, reasonable public notice must be provided. 9. Do not forget that for all required public meetings, reasonable notice must be given, public access must be allowed, and minutes must be made for public inspection. 10. Be advised that the State Attorney General opined that the Sunshine Law applies to the action of just one council, commission or board member when that member has been delegated a portion of the decision-making authority. The Attorney General has determined that if a Commissioner has been authorized, formally or informally, to exercise any decision-making authority on behalf of the Commission, such as approving or rejecting certain contract provisions, he or she is acting on behalf of the Commission and such meetings are subject to the Sunshine Law. See Attorney General Opinion 90-17. E. Necessity for Compliance Compliance with the Sunshine Law is vital. Aside from potential invalidation of the municipal action taken, the statute contains sanctions for non-compliance. A knowing violation is punishable as a misdemeanor of the second degree by imprisonment for 60 days and a fine of $500. Pursuant to a 1985 amendment to the statute, even an unknowing and unintentional violation may result in a non-criminal infraction punishable by a fine not exceeding $500. The goal of the Sunshine Law is to forbid members of a government board from secretly dealing with the public business. The statute has been broadly interpreted by the courts so as to achieve that goal. Commissioners and other board members must utilize great caution, lest their public service be rewarded with fines, penalties and unnecessary aggravation. II. RECEIPT AND REPORTING OF GIFTS Commissioners and other City officers, employees and board members are subject to particular restrictions and requirements on the receipt and reporting of any gifts which they may receive. The source of these restrictions are provided both by state law, including Section 112.3148, Fla. Stat. , and by the Miami-Dade County Conflict of Interest and Code of Ethics Ordinance (the "County Ethics Code"). Commissioners and other City officers, employees and board members must comply with both sets of restrictions, as applicable, and carefully consider each, when offered any gift.2 . 2/ The applicability of these restrictions to City officers, employees and board members is discussed below. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 5 A. Summary of County and State Gift Restrictions. 3 Although the gift receipt and reporting restrictions imposed by the State Ethics Code and County Ethics Code are separately considered and described below, it is helpful to set forth, in summary fashion, an outline of the applicable restrictions. 1. If the value of a gift received by a Commissioner or other Reporting Individual is of a value of $25.00 or less, the gift may be accepted from any person and there is no necessity to report such gift. 2. If the value of the gift received by a Commissioner or other Reporting Individual is greater than $25.00 but not greater than $100.00, the gift may be accepted from any person and must be reported by filing quarterly disclosure with the City Clerk and the Clerk of the Board of County Commissioners. 4 If such permitted gift was from a Lobbyist or Political Committee, they, as special donors, are responsible for filing a report with the Florida Commission. on Ethics (in satisfaction of the State Ethics Code). See discussion on page 15 below. 3. If the value of the gift which is received by the Commissioner or other Reporting Individual is in excess of $100.00, the gift may be accepted from any person other than a Political Committee or I,ohhyist (or the principal of a Lobbyist), and such permitted gift must be reported in quarterly gift disclosure to the City Clerk, the Clerk of the Board of County Commissioners (in satisfaction of the County Ethics Code) and to the Florida Commission on Ethics (in satisfaction of the State Ethics Code) by the Commissioner or other Reporting Individual. A gift in excess of a $100.00 value may llQ1 be accepted from a Political Committee or from a Lobbyist (or the principal of a Lobbyist). B. County Ethics Code. (1) Provisions of the Code. The pertinent provisions of the Miami-Dade County Ethics Code are provided by S 2- 11.1(e), which provides, in pertinent part, as follows: 3/ The terms "Lobbyist", "Political Committee" and "Reporting Individual" are defined on pages 8-10 below. 4/ Filing with the City Clerk is sufficient for this purpose since the reference in Section 2.:. 11.I(e)(4) to the "Clerk of the Board of County Commissioners" is converted to the City Clerk by virtue of the incorporation by reference language used in Section 2-11.1 (a). However, in an abundance of caution, filing with both Clerks is recommended. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. ---~, Honorable Mayor and Commissioners March 15, 2001 Page 6 (e) Gifts (1) Definition. The term "gift" shall refer to the transfer of anything of economic value, whether in the form of money, service, loan, travel, entertainment, hospitality, item or promise, or in any other form, without adequate and lawful consideration. (2) Exceptions. The provisions of subsection (e)(1) shall not apply to: (a) Political contributions specifically authorized by state law; (b) Gifts from relatives or members of one's household; (c) A wards for professional or civic achievement; (d) Materials such as books, reports, periodicals or pamphlets whiCh are solely informational or of an advertising nature; (e) gifts solicited by [City] employees or departmental personnel on behalf of the [City] in conducting its official business; (f) gifts solicited by [Commissioners] on behalf of the [City] in conducting its official business. (3) Prohibitions. A person described in subsection (b)(1)-(6) [County and municipal officials, including Commissioners, officers, employees and board members] shall neither solicit nor demand any gift It is also unlawful for any person or entity to offer, give or agree to give to any person included in the term defined in subsection (b)(1)-(6) or for any person included in the term defined in subsection (b)(1)-(6) [including Commissioners, officers, employees and board members] to accept or agree to accept from another person or entity I any gift for or hecause of: (a) an official puhlic action taken or to be taken, or which could be taken; (b) a legal duty performed or to be performed, or which could be performed; or (c) a legal duty violated or to be violated, or which could be violated by any person included in the term defined in subsection (b)(1) [members of the Board of County Commissioners or members of City Commissions]. (4) Disclosure. Any person included in the term defined in subsection (b)(1)-(6) [including Commissioners, officers, employees and board members] shall disclose as provided herein any gift, or series of gifts from anyone person or entity, having a value in excess of Twenty Five Dollars ($25 00). Said disclosure shall be made by filing a copy of the disclosure form required by Chapter 112, Florida Statutes, for "local officers" with the Clerk of the Board of County Commissioners, simultaneously with the filing of the form with the Secretary of State. (emphasis added.) WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. c_-~ Honorable Mayor and Commissioners March 15, 2001 Page 7 (2) Applicability The above-cited restrictions and provIsIOns of the County Ethics Code are made applicable to municipal Commissioners, officers, employees and hoard memhers, pursuant to ~ 2-11. 1 (a) which provides, in pertinent part, as follows: This section shall be applicable to all County personnel as defined herein, and shall also constitute a minimum standard of ethical conduct and hehavior for all municipal officials and officer;, autonomous personnel, quasi-judicial personnel, advisory personnel, departmental personnel and employees of municipalities in the County insofar as their individual relationships with their own municipal governments are concerned. References in the section to County personnel shall therefore he applicable to muni<;ipal personnel who serve in comparahle capacities to the County personnel referred to (3) Summary The gist of the County Ethics Code provisions applicable to the subject matter of gifts may be summarized as follows: 1. Commissioners, officers, employees and board members are prohibited from soliciting or demanding any gift. 2. Commissioners, officers, employees and board members are prohibited from accepting or agreeing to accept any gift because of or in exchange for the performance or non- performance ofpuhlic duties. 3. Commissioners, officers, employees and board members, must disclose and report any gift or series of gifts from anyone person or entity having a value in excess of Twenty Five Dollars ($25 00) This County Ethics Code provision on gift disclosure would be satisfied by filing such disclosure with the City Clerk on a quarterly basis utilizing the .state Quarterly Gift Disclosure form as provided by ~ 112.3148, Fla.Stat. (Dual filing with the Clerk of the Board of County Commissioners is also recommended). C. State Ethics Code The Code of Ethics for Public Officers and Employees, Section 112.311-112.326, Fla.Stat., (the "State Ethics Code") sets forth a far more complex set of gift restrictions than that provided by the County Ethics Code. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 8 Pursuant to Section 112.313(2), Fla.Stat., all public officers, candidates and employees are prohihited from soliciting or accepting anything of value, such as a gift, loan, reward, service, favor or promise of future employment that is hased on any understanding that their vote, official action or judgment would he influenced by such gift. Additionally, Section 112.313(4) Fla. Stat., prohibits any public officer or employee (or his or her spouse or minor child) from accepting anything of value when such officer or employee knows or should know that it was given to influence action in which the officer or employee is expected to participate in his or her official capacity. Beyond the basic prohibitions set forth in Section 112.313(2), and Section 112.313(4), Fla. Stat., a more complex set of restrictions is established by Section 112.3148, Fla. Stat., "Reporting and prohibited receipt of gifts. . ." (the "State Gift Law"). (1) Applicability of State Gift Law Section 112.3148, Fla. Stat., is applicable to Commissioners and to all other City officers, employees and board members, who are required to file financial disclosure under Section 112.3145, Fla. Stat. (State Form No.1), (the "Reporting Individuals"). (2) Provisions of State Gift Law The core requirements of Section 112.3148, Fla. Stat., as applicable to .c:.i.t:;x Commissioners and other Reporting Individuals, are provided in subsections (3), (4), and (8)(a): (3) A reporting individual or procurement employee is prohihited from soliciting any gift from a political committee or committee of continuous existence, as defined in s. 106.011, ill from a lohhyist who lobbies the reporting individual's or procurement employee's agency, or the partner, firm, employer, or principal of such lobbyist, where such gift 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. (4) A reporting individual or procurement employee or any other person on his or her behalf is prohihited from knowingly accepting, directly or indirectly a gift from a political committee or committee of continuous existence, as defmed in s. 106.011, ill from a lohhyist who lobbies the reporting individual's or WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. ";..;..-~. Honorable Mayor and Commissioners March 15, 2001 Page 9 procurement employee's agency, or directly or indirectly on behalf of the partner, finn, employer, or principal of a 10hhyist, if he or she knows or reasonahly 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. (8)(a) Each reporting individual or procurement employee shall file a statement with the State Commission on Ethics on the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts which he or she helieves to he in excess of $100. in value, if any, accepted by him or her, for which compensation was not provided by the donee to the donor within ninety (90) days of receipt of the gift to reduce the value to $100 or less, except the following: 1. Gifts from relatives. 2. Gifts prohibited by subsection (4) or s. 112.313(4).5 3. Gifts otherwise required to be disclosed by this section. [emphasis added] It should be noted that the term "lobbyist" is broadly defined in Section 112.3148(2)(b), Fla. Stat. , to include any person who for compensation seeks, or sought during the preceding 12 months, to influence the governmental decision-making of the City Commission or the City, and any person who is required by the City to register as a lobbyist. As noted above, the term "reporting individual" includes Commissioners and all other persons required to file annual financial disclosure under Chapter 112, Florida Statutes. (3) Summary of State Law Restrictions The above-referenced gift restrictions provided by the State Ethics Code may be summarized as follows: 5/ This exception providing that illegal gifts are not required to be reported by the Reporting Individual, is apparently in recognition of the privilege against self incrimination. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. - .,.--~..;..-. Honorable Mayor and Commissioners March 15, 2001 Page 10 1. A City Commissioner, public officer, employee or board member is prohibited from soliciting or accepting anything of value upon the basis of any understanding that his or her vote, official action or judgment will be influenced by such gift. (Section 112.313(2), Fla.Stat.) 2. A City Commissioner or other Reporting Individual is prohihited from soliciting any gift from a political committee or committee of continuous existence ("Political Committee"), or from a lobbyist who lobbies the City (the "Lobbyist"), if such gift is for the personal benefit of the Commissioner, the Reporting Individual, another Reporting Individual or procurement employee, or any member of the immediate family of any Commissioner, Reporting Individual or procurement employee. (Section 112.3148(3), Fla. Stat.) 3. A City Commissioner or other Reporting Individual is prohibited from knowingly accepting, directly or indirectly, a gift from a Political Committee or from a Lobbyist who lobbies the City, if he or she (the Commissioner or Reporting Individual) knows or reasonahly helieves that the gift has a value in excess of $100 6 (Section 112.3148(4), Fla. Stat.) 4. City Commissioners and other Reporting Individuals must file a statement with the Florida Commission on Ethics on the last day of each calendar quarter, for the previous calendar quarter, containing a list of gifts required to be disclosed which he or she believes to be in excess of $100 in value, if any, accepted by such Commissioner or Reporting Individual. (Section 112.3148(8)(a), Fla. Stat.) For example, gifts required to be disclosed which are believed to be of a value in excess of $100 would be required to be reported by the Commissioner or Reporting Individual by June 30, 2001 for the quarterly period of January 1 through March 31, 2001. (4) Gift Valuation Section 112.3148(7), Fla.Stat., provides criteria for determining the value of a gift, as follows: .(7)(a) The value of a gift provided to a reporting individual or procurement employee shall be determined using actual cost to the donor, less taxes and gratuities, except as otherwise provided in this subsection, and, with respect to personal services provided by 6/ However, a gift may be accepted by the Commissioner or other Reporting Individual on behalf of the City entity. If so accepted, the person receiving the gift shall not maintain custody of the gift for any period of time beyond that reasonably necessary to arrange for custody and ownership of the gift by the City. (Section 112.3148(4), Fla. Stat.) WEISS SEROTA HELFMAN PASTORIZA & GUEDES, EA. Honorable Mayor and Commissioners March 15, 2001 Page 11 the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided shall be used. If additional expenses are required as a condition precedent to eligibility of the donor to purchase or provide a gift and such expenses are primarily for the benefit of the donor or are of a charitable nature, such expenses shall not be included in determining the value of the gift. (b) Compensation provided by the donee to the donor shall be deducted from the value of the gift in determining the value of the gift. (c) If the actual gift value attributable to individual participants at an event cannot be determined, the total costs shall be prorated among all invited persons, whether or not they are reporting individuals or procurement employees. (d) Transportation shall be valued on a round-trip basis unless only one-way transportation is provided. Round-trip transportation expenses shall be considered a single gift. Transportation provided in a private conveyance shall be given the same value as transportation provided in a comparable commercial conveyance. (e) Lodging provided on consecutive days shall be considered a single gift. Lodging in a private residence shall be valued at the per diem rate provided in S112.061(6)(a)1. less the meal allowance rate provided in S112.061(6)(b). (f) Food and heverages which are not consumed at a single sitting or meal and which are provided on the same calendar day shall be considered a single gift, and the total value of all food and beverages provided on that date shall be considered the value of the gift. Food and beverage consumed at a single sitting or meal shall be considered a single gift and the value of the food and beverage provided at that sitting or meal shall be considered the value of the gift. (g) Memhership dues paid to the same organization during any 12- month period shall be considered a single gift. (h) Entrance fees, admission fees, or tickets shall be valued on the face value of the ticket or fee, or on a daily or per event basis, WEISS SEROTA HELFMAN P ASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 12 whichever is greater. (i) Except as otherwise specified in this section, a gift shall be valued on a per occurrence hasis U) The value of a gift provided to several individuals may he attrihuted on a pro rata hasis among all of the individuals If the gift is food, beverage, entertainment, or similar items, provided at a function for more than ten people, the value of the gift to each individual shall be the total value of the items provided divided by the number of persons inyited to the function, unless the items are purchased on a per person basis, in which case the value of the gift to each person is the per person cost. (k) The value of a gift of an admission ticket shall not include that portion of the cost which represents a charitable contribution, if the gift is provided by the charitable organization. (Emphasis added.) Some of these criteria have been addressed by provisions of the Florida Administrative Code and interpreted by opinions of the Florida Commission on Ethics. Additionally, it should be noted that the value of a gift may be reduced by the donee by paying compensation to the donor. See 112.3148 8(a) Fla. Stat. (5) Definition of Gift To guide a Commissioner's and other Reporting Individual's actions under the gift restrictions set forth in Section 112.3148, Fla. Stat., it is essential to focus on the defmitionof gift as set forth in Section 112.312(12), Fla. Stat. , which provides as follows: (12)(a) "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, including' 1. Real property. 2. The use of real property. 3. Tangible or intangible personal property. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 13 4. The use of tangible or intangible personal property. 5. A preferential rate or terms on a debt, loan, goods, or services, which rate is below the customary rate and is not either a government rate available to all other similarly situated government employees or officials or a rate which is available to similarly situated members of the public by virtue of occupation, affiliation, age, religion, sex or national origin. 6. Forgiveness of an indebtedness. 7. Transportation, other than that provided to a public officer or employee by an agency in relation to officially approved governmental business, lodging, or parking. 8. Food or beverage. 9. Membership dues. 10. Entrance fees; admission fees, or tickets to events, performances or facilities. 11. Plants, flowers, or floral arrangements. 12. Services provided by persons pursuant to a professional license or certificate. 13. Other personal services for which a fee is normally charged by the person providing the services. 14. Any other similar service or thing having an attributable value not already provided for in this section. (b) "Gift" does llil! include" 1. Salary, benefits, services, fees, commISSIons, gifts, or expenses associated primarily with the donee's employment, business, or service as an officer or director of a corporation or organization. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 14 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. 3. An honorarium or an expense related to an honorarium event paid to a person or the person's spouse. ~ 4. An award, plaque, certificate, or similar personalized item given in recognition of the donee's public, civic, charitable, or professional service. 5. An honorary membership in a serVIce or fraternal organization presented merely as a courtesy by such organization. 6. The use of a public facility or public property, made available by a governmental agency, for a public purpose. 7. Transportation provided to a public officer or employee by an agency in relation to officially approved governmental business. 8. Gifts provided directly or indirectly by a state, regional, or national organization which promotes the exchange of ideas between, or the professional development of, governmental officials or employees, and whose membership is primarily composed of elected or appointed public officials or staff, to members of that organization or officials or staff of a governmental agency that is a member of that organization. 8 7/ Honorariums (payment made for a public officer's speech, lecture or writing) are governed by Section 112.3149, Fla.Stat., which imposes restrictions, prohibitions and reporting requirements. - 8/ Items 7. and 8. of Sec. 112.312(12)(b), which excludes certain items from the definition of "gift", were enacted effective January 1, 1997. WEISS SEROTA HELFMAN P ASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 15 (6) Examples Consideration of examples of the application of the "gift" definition is helpful to an understanding of the interpretation of th~se provisions. Pursuant to Section 112.3148(4), Fla. Stat. and Section 112.312(12)(a)(8), PIa.Stat., it would generally be permissihle for a Commissioner or other Reporting Individual to simply .accept food, beverages or other gift, of a value in excess of $100.00, from any person, except fmm a Political Committee or a Lobbyist.9 If the food, beverage or other gift is from a Political Committee or Lobbyist it can D.QJ: be accepted if the Commissioner or other Reporting Individual knows or reasonably believes the value exceeds $100.00. Further, it would D.QJ: be proper for such Commissioner or other Reporting Individual to sclicit such food, beverages or other gift from a Political Committee or a Lobbyist who lobbies the City, regardless of the value of the gift, since that is prohibited by Section 112.3148(3), Fla. Stat. Under Section 112.312(12)(a)(10), Fla. Stat., a Commissioner or other Reporting Individual would he prohihited from accepting tickets to a show from a Political Committee, or from a Lobbyist who lobbies the City, if the Commissioner or Reporting Individual knows or reasonably believes that the gift has a value in excess of $100. However, a Commissioner or Reporting Individual could accept such gift from a person other than a Lohhyist or Political Committee. Such gift would then be subject to reporting and disclosure by the Commissioner or Reporting Individual. 10 Pursuant to ~ 112.3148(5)(b), Fla. Stat., a Political Committee or Lobbyist who makes a gift having a value in excess of $25.00, but not in excess of $100.00, to a Commissioner or other Reporting Individual, is required to file a quarterly gift disclosure report with the Commission on Ethics. That report describes the gift, its value and identifies the recipient. The donor is required to notify the donee that the gift will be reported. This provision places the burden for reporting such gifts (given by Political Committees or Lobbyists) on the donor rather than the 9/ Please note that such permitted gift of food, beverages or other item must be reported by Commissioners and other Reporting Individuals under the State Ethics Code and County Ethics Cill:1.e. Naturally, the gift could not be accepted if prohibited by Section 112.313(2)(4), Fla. Stat., as discussed on Page 8, above. 10/ Such report would be required under both the State Ethics Code ($100.00 reporting threshold) and County Ethics Code ($25.00 reporting threshold). WEISS SEROTA HELFMA~ PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 16 donee, under the State Ethics Code. However, under the County Ethics Code, the donee Commissioner or other Reporting Individual is still required to report this same gift. 11 Pursuant to Section 112. 3148(4), Fla. Stat. , a Commissioner or other Reporting Individual could attend a catered luncheon hosted by a local law firm which lobbies the City for zoning approvals for a private property owner, so long as the value of the luncheon gift does not exceed $100.00.12 If the caterer charged the law firm $20.00 per person, the value of the gift for a Coinmissioner and his or her spouse would be $40.00. This would require the Commissioner to file a quarterly gift disclosure report with the City Clerk and the Clerk of the Board of County Commissioners pursuant to the County Ethics Code, as explained above. D. Potential Penalties and Consequences. (1) State Law While there are no criminal penalties for violation of the Florida Code of Ethics, unless such conduct also violates some other law providing such penalty, the non-criminal violation by a Commissioner or other Reporting Individual of the gift solicitation or acceptance prohibitions and gift reporting requirements can result in one or more of the following penalties: Public officers' Impeachment; Removal from office; Suspension from office; Public censure and reprimand; Forfeiture of part of public salary or compensation; Civil penalty not to exceed $10,000; Restitution of any pecuniary benefits received because of the ethical violation committed. 11/ A pitfall created by these dual State/County regulations may arise. For example, if a Lobbyist reports (under the State Ethics Code)a gift to a Reporting Individual of a value of $50.00, for a basket of fruit, etc., but the Reporting Individual fails to file the required County Ethics Code report, a violation may arise, despite the fact that a public disclosure has been made. 12/ This restriction would also apply to a luncheon hosted by a private property owner who utilizes the services of the Lobbyist, since such private property owner would be the "principal of a lobbyist", within the scope of Section 112.3148(4), Fla. Stat. See pages 8-9, above. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 17 Employees' Dismissal; Suspension; Demotion; Reduction or forfeiture of salary; Civil penalty; Restitution; Public censure and reprimand. Each of the above penalties is provided by Section 112.317(1)(a)(b), Fla.Stat. (2) County Ethics Code Under the County Ethics Code, S 2-11.1(w), tht;: potential punishment for a violation of the County Ethics Code provisions pertaining to the receipt and reporting of gifts, as required by the County Ethics Code consists of an admonition, public reprimand and/or fine from the Miami- Dade County Ethics Commission or if prosecuted by a State Attorney, a criminal penalty of a fine not to exceed $500 or imprisonment in the County jail for not more than 30 days or by both such fine and imprisonment. 13 It is important to remember that a determination of compliance with hu!h the State Ethics Code and County Ethics Code is required. E. Conclusion As can be seen from the above analysis and examples, the complexity of the applicable restrictions makes it very wise to seek legal advice and guidance on each specific instance which arises under the State or County gift laws. It is intended that this letter set forth general guidelines and promote awareness of restrictions, while encouraging the seeking of advice, from time to time, as necessary. 13/ That penal sanction merits serious attention. Several years ago, the Miami-Dade State Attorney I s office attempted to criminally prosecute members of the Coral Gables City Commission for alleged violation of the County gift reporting requirements. Although these charges were ultimately dismissed by the courts, much embarrassment and aggravation was suffered by members of the City Commission. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A. Honorable Mayor and Commissioners March 15, 2001 Page 18 Please advise if there are any questions on the matters addressed in Sections I or II, above or if questions arise in the future. . Respectfully submitted, r ~~ David M. Wolpin DMW/cmb 328.001 cc:Mr. Eric M. Soroka, City Manager Teresa M. Soroka, CMC/ AAE, City Clerk Richard Jay Weiss, Esq. WEISS SEROTA HELFMAN PASTORIZA & GUEDES, P.A.