Attorney General of Florida — Opinion
May 6, 2003
RE: PUBLIC OFFICERS — TESTIMONIALS — events honoring or raising funds for elected public official. s. 111.012, Fla. Stat.
Charlie Crist Attorney General
The Honorable Mark Andersen Bay County Supervisor of Elections 205 Mosley Drive Lynn Haven, Florida 32444
Dear Mr. Andersen:
You ask substantially the following question:
What type of events are subject to the reporting requirements of section 111.012, Florida Statutes?
Section 111.012(2)(a), Florida Statutes, governs the conduct of testimonials for elected public officers. “Testimonial” is defined for purposes of section 111.012, Florida Statutes, as “any breakfast, dinner, luncheon, rally, party, reception, or other affair held to honor or raise funds on behalf of any elected public officer, except a campaign fund raiser held pursuant to s. 106.025(1).”
Before a testimonial may be held, a notice of intent to hold the testimonial must be filed by the person in charge of the testimonial with the Division of Elections in the case of a state or multi county district officer or, in the case of other officers, with the supervisor of elections for the county in which the officer resides. In addition, section 111.012(2)(a), Florida Statutes, requires that a testimonial account be established in a depository and a treasurer appointed: “No money or donation may be accepted, nor may any payment be made, with respect to such testimonial until the notice of intent has been filed and the testimonial account has been established and a treasurer has been appointed therefore.”
All money and donations received, and all payments made, with respect to the testimonial must be received and made through the treasurer, who is required to keep detailed accounts of all deposits and all payments made. Proceeds from the testimonial remaining after the payment of expenses are to be distributed as provided in the statute:
“All proceeds after payment of the expenses for such testimonial shall be donated to a charity stated in the notice of intent; returned pro rata to each person who purchased a ticket, gave money, or made a donation; or given, in the case of a state officer, to the state to be deposited in the General Revenue Fund or, in the case of an officer of a political subdivision, to the political subdivision to be deposited in the general fund thereof. A report of such disposition of funds shall be made by the person in charge of such testimonial within 90 days from the date the testimonial is held and shall be filed with the officer with whom the notice of intent is filed.”
Section 111.012(2)(e) and (f), Florida Statutes, provides that it is a first-degree misdemeanor for any person or officer to hold a testimonial, or consent to a testimonial being held, in violation of subsection (2) of the statute; further, it is a first-degree misdemeanor for any person required to dispose of the funds in a testimonial account to fail to dispose of the funds in the manner prescribed by the statute.
The parameters of section 111.012, Florida Statutes, have not been judicially determined by the appellate courts of this state. The legislative history regarding the adoption of a statute, however, may be used to clarify ambiguity within the statute and to discern legislative intent. In construing a statute, a court will consider its history, the evil to be corrected, the purpose of the enactment, and the state of the law already in existence.
Section 111.012, Florida Statutes, was adopted in 1981 by Chapter 81-304, Laws of Florida. Predecessor statutes relating to testimonials referred to affairs at which funds were raised. For example, section 99.193, Florida Statutes (1977), defined “testimonial affair” to mean “an affair held in honor of a person who holds, or who is or was a candidate for nomination or election to, a political office in this state, designed to raise funds on his behalf for any purpose not charitable, religious, or educational.”
Section 99.193 was replaced by section 106.025, Florida Statutes (1978 Supplement), which provided that no testimonial could be held for the purpose of raising funds to be used in a campaign for public office or nomination or election thereto unless written notice of the intent to hold such a testimonial was filed with the appropriate officials.
“Testimonial” was generally defined in section 106.011(11), Florida Statutes (1978 Supplement), to mean “any breakfast, dinner, luncheon, rally, party, reception, or other affair held to raise funds for any purpose.” In 1981, Chapter 81-304, Laws of Florida, created section 111.012, Florida Statutes.
While these predecessor statutes clearly limited testimonials to those that raised funds, the current statute, by defining testimonials to include affairs that “honor or raise funds,” is not as clear. An examination of the legislative history failed to reveal whether the Legislature intended by the use of such language to expand the application of the statute to include any affair honoring a public official where no funds were raised. The staff analysis discussing the amendment merely states:
“Provides procedures for testimonials to be held to honor or raise funds on behalf of any elected public officer except campaign fund raisers. No contribution limits are established. Testimonials for public officers are removed from Chapter 106 and placed in Chapter 111 which also contains gift reporting provisions.”
As noted above, the term “testimonial” is defined for purposes of section 111.012, Florida Statutes, as “any breakfast, dinner, luncheon, rally, party, reception, or other affair held to honor or raise funds on behalf of any elected public officer, except a campaign fund raiser held pursuant to s. 106.025(1).” (e.s.) While the term “or other affair” would refer to the type of events that are similar in nature and character to those specifically enumerated in the statute, the definition does not, like its predecessors, limit its terms to fund raisers. Other provisions of the statute, however, relate to the acceptance of funds.
For example, section 111.012(2)(b), Florida Statutes, states that the notice of the testimonial required to be filed must state, among other things, the purpose for which the funds raised are to be used.
Thus, while section 111.012, Florida Statutes, refers to affairs to hono or raise funds, I cannot conclude that the Legislature intended to encompass all events honoring a public official where no funds are being raised or payments made to attend. To read the statute so broadly could result in, for example, birthday parties held by family members for an elected public official being subject to the statute.
Accordingly, in the absence of clear expression of legislative intent and in light of the criminal penalties imposed for violation of the statute, I am of the opinion that legislative clarification should be sought to determine whether the provisions of section 111.012, Florida Statutes, apply to those affairs held in honor of an elected public official when no funds are raised at such event.
Charlie Crist Attorney General