CEO 02-15 -- July 30, 2002

 

PUBLIC OFFICERS; FINANCIAL DISCLOSURE; VOTING CONFLICTS LAW

 

FLORIDA SPACE INDUSTRY COMMITTEE

 

To:       Gregory A. Popp, Counsel to Florida Space Industry Committee (Merritt Island)

 

SUMMARY:

 

 

The officers and directors of the Florida Space Industry Committee (FSIC) are "public officers" subject to the standards of conduct contained in Section 112.313, Florida Statutes.  Because they are not listed in the statute and because FSIC is an "advisory body," the officers/directors are neither "local officers" nor "state officers" subject to filing financial disclosure under Section 112.3145, Florida Statutes.  However, they are "local public officers" for purposes of the voting conflicts law contained in Section 112.3143, Florida Statutes.  The mere members of FSIC are neither public officers, local officers, state officers, nor local public officers.  CEO's 76-25, 76-61, 77-7, 88-3, 88-25, and 01-11 are referenced.

 

QUESTION 1:

 

Are the officers and directors of the Florida Space Industry Committee "public officers" subject to the standards of conduct contained within Section 112.313, Florida Statutes?

 

This question is answered in the affirmative.

 

By your letter of inquiry, additional correspondence between you and our staff, and information provided by you to our staff via telephone, we are advised that you are counsel to the Florida Space Industry Committee (FSIC) and that you are making inquiry in behalf of the several officers, directors, and many members of FSIC, at the direction of its president.  Further, you advise that FSIC exists under Section 331.367, Florida Statutes, and has as its mission to serve as the voice of the space industry in advising the Spaceport Florida Authority (SFA) and the Office of Tourism, Trade, and Economic Development of the Office of the Governor (OTTED) on matters related to development, financing, and utilization of the Cape Canaveral Spaceport and other space-related infrastructure and activity within the State.^[1]  In addition, you advise that "FSIC has not seen any 'appointments' as contemplated under Section 331.367, but exists through an ad hoc association of volunteers"; that these persons have been meeting to conduct the mission of FSIC, have elected a leadership, and have established rules for operation of FSIC; that the meetings have been noticed and are open to any person who desires to attend; that a record of meetings is kept and reduced to minutes, which you understand to be available for public inspection or copying; that it appears that FSIC is complying with and is subject to the open meetings law contained in Chapter 286, Florida Statutes; that any space enterprise person may belong to and participate in FSIC as a member; but that FSIC is not a private (neither for-profit nor not-for-profit) corporation.

 

Section 112.313(1), Florida Statutes, defines "public officer" to mean

 

any person elected or appointed to hold office in any agency, including any person serving on an advisory body.

 

Initially, we find that FSIC is an "agency" because it is not a private entity and, more importantly, because it is statutorily rooted within the Spaceport Management Council (SMC), which is itself created within the Spaceport Florida Authority [(SFA) ". . . a public corporation, body politic, and subdivision of the state . . . ."].^[2]  Also, we find that the officers and directors of FSIC are public officers of FSIC notwithstanding that they are chosen pursuant to FSIC's bylaws and not via gubernatorial appointment or another more traditional method of appointment.^[3]  See CEO 76-61, in which we found that the members of the Coastal Zone Citizens Advisory Committee (CZCAC) to the Southwest Florida Regional Planning Council (SWFRPC), who are appointed by the SWFRPC by agreement with the Division of State Planning, are public officers subject to the standards of conduct of the Code of Ethics; CEO 88-25, in which we found that associate medical examiners (appointed by and serving at the pleasure of the district medical examiner) are public officers; and CEO 01-11 (community planning panel members selected by neighborhood organizations are "appointed").  However, we do not find that persons holding mere membership in FSIC (or persons representing businesses holding membership in FSIC) are "public officers," inasmuch as the scenario before us does not indicate that they are appointed or elected (by any method), much less that they hold any public office.^[4] 

 

Accordingly, we find that the directors and officers of FSIC (but not the mere members) are "public officers" for purposes of the standards of conduct contained in Section 112.313.

 

QUESTION 2:

 

Are the officers and directors of FSIC either "local officers" or "state officers" required to file statements of financial interests under Section 112.3145, Florida Statutes?

 

This question is answered in the negative.

 

In addition to your representations referenced under Question 1, you advise that there is no line item funding for FSIC; that FSIC is  funded by SFA on a discretionary basis [that is by providing support to FSIC through a SFA contractor (that no moneys go directly to FSIC)]; that FSIC advisory recommendations go to OTTED only, with courtesy copies provided to SFA; and that OTTED is under no obligation to accept FSIC recommendations, OTTED exercising total discretion in its responses to FSIC recommendations.

 

Currently, Section 112.3145(1)(a), Florida Statutes, enumerates a long list of positions (all located within political subdivisions of the State), the holders of which are "local officers."^[5]  Assuming arguendo that the FSIC director/officer positions are within a political subdivision by virtue of FSIC's status relative to SFA (a credible assumption in view of the language of Section 331.302, Florida Statutes), we nevertheless find that the FSIC director/officer positions do not coincide with any of the positions enumerated under current law and thus that the directors/officers are not "local officers."^[6]

 

Regarding the issue of whether the directors/officers are "state officers," Section 112.3145(1)(c)2, Florida Statutes, is relevant and includes within the applicable definition

 

[a]n appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body.

 

Section 112.312(1), Florida Statutes, defines "advisory body" to mean

 

any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations.

 

Assuming that FSIC has "statewide jurisdiction," a somewhat difficult assumption given the limited territory (confined to five counties) designated for SFA (the agency served by FSIC) under Section 331.304 and given the "body politic and subdivision of the state" language applied to SFA via Section 331.302(2), we nevertheless find that its directors/officers are not "state officers" because we find that FSIC is an "advisory body."  Under the situation described, FSIC meets both the budgetary amount test (in that it has no budget) and the advisory nature test (in that OTTED has complete discretion regarding its treatment of FSIC recommendations).  See  CEO 76-25 and CEO 77-7.

 

Accordingly, we find that the directors/officers of FSIC are not required to file financial disclosure (CE Form 1) because they are neither "local officers" nor "state officers."^[7]

 

QUESTION 3:          

 

Are the directors/officers of FSIC "local public officers" for purposes of the voting conflicts law contained in Sections 112.3143(3)&(4), Florida Statutes?

 

This question is answered in the affirmative.

 

We have interpreted the voting conflicts law's references to "local public officers" and "state public officers" in relation to our interpretation of "local officer" and "state officer" under the financial disclosure law, with the understanding that for voting conflicts law purposes a member of a board must be one or the other, with the "default" result identifying one as a "local public officer."  See CEO 88-3.   Thus, because FSIC does not have statewide jurisdiction, we find that its directors/officers^[8] are "local public officers" under the voting conflicts law, with the result that they are subject to the disclosure, abstention, and filing requirements of Sections 112.3413(3)(a)&(4), Florida Statutes.^[9]

 

            This question is answered accordingly.

 

ORDERED  by the State of Florida Commission on Ethics meeting in public session on July 25, 2002 and RENDERED this 30th day of July, 2002.

 

 

 

__________________________

Patrick K. Neal

Chair