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LTC 609-2017 Annual Holiday Gift Reminder to City CommissionMIAMIBEACH OFFICE OF THE CITY ATTORNEY LTC No. 609-2017 LETTER TO COMMISSION TO: Mayor Dan Gelber and Members of the City Commission FROM: Raul J. Aguila, City Attorney j ✓"" DATE: December 19, 2017 SUBJECT: Annual Holiday Gift Reminder to City Commission During this holiday season, the issue of gift acceptance is particularly important for members of the City Commission to keep in mind. As such, this LTC has been prepared in order to provide brief explanation to the Mayor and City Colrnnnissioners of the rules and restrictions applicable to City elected officials related to gift solicitation/acceptance/disclosure. In view of the complexity of City, County and State laws on topic and the intended generalized summation below of relevant gift rules, it is recommended that specific questions on these matters be directed to me for analysis and discussion. 1. WHAT IS A "GIFT". A "gift" is anything received by you (directly or indirectly) for which you have not provided equal consideration. 2. WHAT IS NOT A "GIFT". 1 • Political contributions specifically authorized by State law; • Gifts from relatives or members of one's household; • Awards for professional or civic achievement; and • Material such as books, reports, periodicals or pamphlets which are solely informational or of an advertising nature. 3. PROHIBITED ACTIVITIES RE: GIFT SOLICITATION/ACCEPTANCE. SOLICITATION RESTRICTIONS: • May not solicit any gifts based upon any understanding that your vote, official action, or judgment as a public officer would be influenced thereby. • May not solicit any gift from a Political Committee.2 See, Miami -Dade County Code, section 2-11.1(e)2. 2 NOTE: This gift prohibition expressly applies to elected officials as well as to members of their immediate families. See, Florida Statute section 112.31485. We are committed to providing excellent public service and safely to all who live, work, and play in our vibrant, tropical, his1wric immunity. Letter to Commission — Annual Holiday Gift Reminder to City Commission December 19, 2017 Page 2 • May only solicit a gift when done on behalf of the City it your official duties for use solely by the City in conducting • Solicitation also permissible if done by you or your staff of any nonprofit organization for use solely by that neither you or your staff receives any compensation solicitation. a the performance of its official business. members, on behalf organization where as a result of the • Above instances of permissible solicitation may not be for the personal benefit of you, or other designated CMB officials/employees, or for related members of your/their immediate families. PROHIBITED GIFTS—MAY NOT BE ACCEPTED: • Any gifts based upon any understanding that your vote, official action, or judgment as a public officer would be influenced thereby • Gifts in excess of $100 from a vendor or lobbyist (including the partner, firm, employer, or principal of a lobbyist). • Travel -related expenses from a City vendor (subject to limited exception/waiver by City Commission). • Any gift from a Political Committee.5 4. PUBLIC DISCLOSURE OF ACCEPTED GIFTS: • As a City elected official, you are required to file a statement6 with the State of Florida Ethics Commission and with the Miami -Dade County Ethics Commission, containing a list of gifts you accepted which exceed $100 in value, for which compensation was not provided by you to the donor within 90 days of receipt of the gift to reduce the value to $100 or less. • This disclosure statement must be filed not later than the last day of each calendar quarter, for disclosure of gifts you received during the previous calendar quarter. • No disclosure statement need be filed if you have not received any gifts. RJA/JO:mmm Attachment F:\ATT'O\AGUR\CITY ATTORNEY\LTC\2017\LTC Annual Holiday Gift Reminder 12-19-17-JO.docx 3 Members of the City Commission are required to file disclosure statements concerning their solicitation activities on behalf of certain nonprofit entities. See, Miami -Dade County Code sections 12-14.2.1 and 12-14.2.2; and Miami Beach Code section 2-461. 4 "As used in this subsection, a 'nonprofit organization' shall mean any entity described in section 501(c)(3) of the Internal Revenue Code (the 'Code') that is tax exempt under section 501(a) of the Code. As used in this subsection, 'compensation' means any money, gift, favor, political contribution, thing of value or other financial benefit." Id s See f.n.#2, above. 6 See attached State COE Form 9 (also available in the City Clerk's Office). We are committed to providing excellent public service and safety to all who live, work, and play in our vibrant, tropical, historic community. Form 9 QUARTERLY GIFT DISCLOSURE (GIFTS OVER $100) LAST NAME -- FIRST NAME -- MIDDLE NAME: NAME OF AGENCY: MAILING ADDRESS: OFFICE OR POSITION HELD: CITY: ZIP: COUNTY: FOR QUARTER ENDING (CHECK ONE): YEAR ❑MARCH ❑JUNE ❑SEPTEMBER ❑ DECEMBER 20_ PART A - STATEMENT OF GIFTS Please list below each gift, the value of which you believe to exceed $100, accepted by you during the calendar quarter for which this statement is being filed. You are required to describe the gift and state the monetary value of the gift, the name and address of the person making the gift, and the date(s) the gift was received. If any of these facts, other than the gift description, are unknown or not applicable, you should so state on the form. As explained more fully in the instructions on the reverse side of the form, you are not required to disclose gifts from relatives or certain other gifts. You are not required to file this statement for any calendar quarter during which you did not receive a reportable gift. DATE DESCRIPTION MONETARY NAME OF PERSON ADDRESS OF PERSON RECEIVED OF GIFT VALUE MAKING THE GIFT MAKING THE GIFT ❑ CHECK HERE IF CONTINUED ON SEPARATE SHEET PART B - RECEIPT PROVIDED BY PERSON MAKING THE GIFT If any receipt for a gift listed above was provided to you by the person making the gift, you are required to attach a copy of that receipt to this form. You may attach an explanation of any differences between the information disclosed on this form and the information on the receipt. ❑ CHECK HERE IFA RECEIPT IS ATTACHED TO THIS FORM PART C - OATH I, the person whose name appears at the beginning of this form, do STATE OF FLORIDA COUNTY OF depose on oath or affirmation and say that the information disclosed Sworn to (or affirmed) and subscribed before me this day of 20 herein and on any attachments made by me constitutes a true accurate, by and total listing of all gifts required to be reported by Section 112.3148, Florida Statutes. (Signature of Notary Public -State of Florida) (Print, Type, or Stamp Commissioned Name of Notary Public) SIGNATURE OF REPORTING OFFICIAL Personally Known OR Produced Identification Type of Identification Produced PART D - FILING INSTRUCTIONS This form, when duly signed and notarized, must be filed with the Commission on Ethics, P.O. Drawer 15709, Tallahassee, Florida 32317-5709; physi- cal address: 325 John Knox Road, Building E, Suite 200, Tallahassee, Florida 32303. The form must be filed no later than the last day of the calendar quarter that follows the calendar quarter for which this form is filed (For example, if a gift is received in March, it should be disclosed by June 30.) CE FORM 9- EFF. 1/2007 (Refer to Rule 34-7.010(1)(g), F.A.C.)(Rev. 6/2016) (See reverse side for instructions) 11�_ PART E - INSTRUCTIONS WHO MUST FILE THIS FORM? flowers, or floral arrangements; services provided by persons pursuan to a professional license or certificate; other personal services foi • Any individual, including a candidate upon qualifying, who is required by law to file full and public disclosure of his financial interests on Commission on Ethics Form 6, except Judges. (See Form 6 for a list of persons required to file that form.) • Any individual, including a candidate upon qualifying, who is required by law to file a statement of financial interests on Commission on Ethics Form 1. (See Form 1 for a list of persons required to file that form.) • Any procurement employee of the executive branch or judicial branch of state government. This includes any employee of an officer, department, board, commission, council, or agency of the executive branch or judicial branch of state government who has participated in the preceding 12 months through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, or auditing or in any other advisory capacity in the procurement of contractual services or commodities as defined in s. 287.012, F.S., if the cost of such services or commodities exceeds or is expected to exceed $10,000 in any fiscal year. NOTE: Gifts that formerly were allowed under Section 112.3148, F.S., now may be prohibited under Sections 11.045, 112.3215, and 112.31485, F.S. WHAT GIFTS ARE REPORTABLE? • Any gift (as defined below) you received which you believe to be in excess of $100 in value, EXCEPT: 1) Gifts from the following RELATIVES: father, mother, son, daughter, brother, sister, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in- law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother, half sister, grandparent, great grandparent, grandchild, great grandchild, step grandparent, step great grandparent, step grandchild, step great grandchild, a person who is engaged to be married to you or who otherwise holds himself or herself out as or is generally known as the person whom you intend to marry or with whom you intend to form a household, or any other natural person having the same legal residence as you. 2) Gifts which you are prohibited from accepting by Sections 112.313(4) and 112.3148(4), Florida Statutes. These include any gift which you know or, with the exercise of reasonable care, should know was given to influence a vote or other action in which you are expected to participate in your official capacity; it also includes a gift worth over $100 from a vendor doing business with your agency, a political committee under the elections law, from a lobbyist who lobbies your agency or who lobbied your agency within the past 12 months, or from a partner, firm, employer, or principal of such a lobbyist. 3) Gifts worth over $100 for which there is a public purpose, given to you by an entity of the legislative or judicial branch, a department or commission of the executive branch, a water management district created pursuant to s. 373.069, South Florida Regional Transportation Authority, a county, a municipality, an airport authority, or a school board; or a gift worth over $100 given to you by a direct - support organization specifically authorized by law to support the governmental agency of which you are an officer or employee. These gifts must be disclosed on Form 10. • A "gift" is defined to mean that which is accepted by you or by another in your behalf, or that which is paid or given to another for or on behalf of you, directly, indirectly, or in trust for your benefit or by any other means, for which equal or greater consideration is not given within 90 days after receipt of the gift. A "gift" includes real property; the use of real property; tangible or intangible personal property; the use of tangible or intangible personal property; 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; forgiveness of an indebtedness; transportation (unless provided to you by an agency in relation to officially approved governmental business), lodging, or parking; food or beverage; membership dues; entrance fees, admission fees or tickets to events, performances, or facilities; plants, CE FORM 9- EFF. 1/2007 (Refer to Rule 34-7.010(1)(g), F.A.C.)(Rev. 6/2016) which a fee is normally charged by the person providing the services and any other similar service or thing having an attributable value anc not already described. • The following are NOT reportable as gifts on this form: salary, benefits, services, fees, commissions, gifts, or expenses associated primarily with your employment, business, or service as an officer or director of a corporation or organization; contributions or expenditures reported pursuant to the election laws, campaign -related personal services provided without compensation by individuals volunteering their time, or any other contribution or expenditure by a political parry; an honorarium or an expense related to an honorarium event paid to you or your spouse; an award, plaque, certificate, or similar personalized item given in recognition of your public, civic, charitable, or professional service; an honorary membership in a service or fraternal organization presented merely as a courtesy by such organization; the use of a governmental agency's public facility or public property for a public purpose. Also exempted are some gifts from state, regional, and national organizations that promote the exchange of ideas between, or the professional development of, governmental officials or employees. HOW DO I DETERMINE THE VALUE OF A GIFT? • The value of a gift provided to you is determined using the actual cost to the donor, and, with respect to personal services provided by the donor, the reasonable and customary charge regularly charged for such service in the community in which the service is provided. Taxes and gratuities are not included in valuing a gift. If additional expenses are required as a condition precedent to the donor's eligibility to purchase or provide a gift and the expenses are primarily for the benefit of the donor or are of a charitable nature, the expenses are not included in determining the value of the gift. • Compensation provided by you to the donor within 90 days of receiving the gift shall be deducted from the value of the gift in determining the value of the gift. • If the actual gift value attributable to individual participants at an event cannot be determined, the total costs should be prorated among all invited persons. A gift given to several persons may be attributed among all of them on a pro rata basis. Food, beverages, entertainment, etc., provided at a function for more than ten people should be valued by dividing the total costs by the number of persons invited, unless the items are purchased on a per -person basis, in which case the per -person cost should be used. • Transportation should be valued on a round-trip basis unless only one- way transportation is provided. Round-trip transportation expenses should be considered a single gift. Transportation provided in a private conveyance should be given the same value as transportation provided in a comparable commercial conveyance. • Lodging provided on consecutive days should be considered a single gift. Lodging in a private residence should be valued at $44 per night. • Food and beverages consumed at a single sitting or event are a single gift valued for that sitting or meal. Other food and beverages provided on a calendar day are considered a single gift, with the total value of all food and beverages provided on that date being the value of the gift. • Membership dues paid to the same organization during any 12 -month period are considered a single gift. • Entrance fees, admission fees, or tickets are valued on the face value of the ticket or fee, or on a daily or per event basis, whichever is greater. If an admission ticket is given by a charitable organization, its value does not include the portion of the cost that represents a contribution to that charity. • Except as otherwise provided, a gift should be valued on a per occurrence basis. FOR MORE INFORMATION The gift disclosures made on this form are required by Sec. 112.3148, Florida Statutes. Questions may be addressed to the Commission on Ethics, P.O. Drawer 15709, Tallahassee, Florida 32317-5709 or by calling (850) 488-7864; information is provided at: www.ethics.state.fl.us.