Vamos a la Playa!
By: Ruben Duran
Summer’s approach often brings thoughts of travel. Whether with family or friends, by train, bus, car or plane, to places exotic or nearby, most people love to just get away from the day-to-day and viajar.
Public officials in California are no different, though they do have to remember the rules if someone else pays for their travel. This edition of The Ethics Advisor offers a brief summary of the basic laws and regulations concerning gifts of travel and some gentle warnings because even if a public official with every good intention runs afoul of the law in this area, it often leads to caustic coverage in the press and stiff penalties from the FPPC, and sometimes even criminal prosecution, which can have even more severe consequences.
Let’s start with the basic rule in California that a “gift” is anything of value you receive without paying for it. In the context of travel, this could mean airline or train tickets, a rental or other borrowed car, the use of a timeshare or private home without the owner present, or a hotel stay. Next, understand that “travel payments” can also include payments for food and drink that are part of the trip.
The government code has special rules for gifts of travel, and depending on the circumstances of your trip, they can be tricky. Not all travel for which you don’t pay is a reportable gift or subject to the gift limits. As with many ethics rules and conflicts of interest laws, there are exceptions.
The broadest exemption depends on your status as a Form 700 filer and your category of disclosure under the law and your agency’s local Conflicts of Interest Code. Briefly, the Political Reform Act requires elected officials to disclose gifts valued at $50 or more in the aggregate and prohibits the acceptance of more than $460 from any single source. On the other hand, public officials not designated in that category (who typically are required to report gifts and income from a more limited scope of sources – those who do business in the jurisdiction, for example) do not have to report gifts of travel from non-reportable sources at all.
Other exemptions that apply to all Form 700 filers include:
- Travel paid for by your public agency related to trips on which public business is conducted
- Travel paid for by another governmental agency for education, training or other inter-agency programs
- Travel in a vehicle or aircraft owned by another official or agency when the officials are traveling to or from the same location or event as representatives of their respective offices
- Travel as part of a local official’s employment with their agency, paid for by that agency, when on official agency business
- Travel provided by a bona fide non-profit, tax-exempt organization for which the official provides equal or greater consideration (with the burden on the official of proving the consideration)
- Travel whose costs are paid by the local agency after the local agency receives payment for the costs from third parties. In this situation, the travel must be for carrying out official agency business and the local agency must report the payment on a Form 801.
- Travel for campaign purposes paid out of properly raised and reported campaign funds
- Travel paid for by third parties where a contract between the local agency and the third party requires such payment.
Also exempt from reporting and disclosure are gifts of hospitality including food, drink or occasional lodging that an official receives in an individual’s home when the individual or a member of his or her family is present. (FPPC Regulation 18942(a)(7)). For this exception to apply, the official must have a relationship, connection or association with the individual providing the in-home hospitality that is unrelated to the official’s position and the hospitality must be provided as part of that relationship. Examples provided by the FPPC include functions like children’s birthday parties, sports team parties, neighborhood barbeques, etc., where other guests attend “who are not part of the lobbying process.” (FPPC Regulation 18942.2.)
To conclude, The Ethics Advisor wishes you buen viaje and smooth ethical sailing. As always, feel free to reach out to us with your questions or comments.
Ruben Duran is a partner in Best Best & Krieger LLP’s Los Angeles office. He has counseled elected officials for nearly 17 years and offers training throughout California on good governance and ethics. A former city attorney, he is a regular speaker for the California Institute for Local Government and serves as the general counsel to the Oxnard Harbor District, which owns and operates the commercial Port of Hueneme.