DISCLOSURE OF FINANCIAL INTERESTS

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO MEMBERS
OF THE VIRGINIA KEY ADVISORY BOARD

To: Victoria Mendez, City Attorney (Miami)

SUMMARY:

Members of the Virginia Key Advisory Board are not "local officers" subject to the financial disclosure requirements of Section 112.3145, Florida Statutes. CEO 01-11 and 00-19 are referenced. ¹

QUESTION:

Are members of the Virginia Key Advisory Board "local officers" subject to the financial disclosure requirements of Section 112.3145, Florida Statutes?

Your question is answered in the negative.

In your letter of inquiry, you ask, as the City Attorney for the City of Miami, whether members of the Virginia Key Advisory Board (VKAB) are "local officers" required to comply with the financial disclosure requirements of Section 112.3145, Florida Statutes. You state that the VKAB was created by a City ordinance, now codified in the City Code. You further state that the VKAB is an advisory board that makes recommendations regarding planning and zoning.

The provision of the Code of Ethics for Public Officers and Employees, Part III, Chapter 112, Florida Statutes ("Code of Ethics") implicated by your question is Section 112.3145, Florida Statutes, which provides, in relevant part, with emphasis supplied:

Disclosure of financial interests and clients represented before agencies.—

(1) For purposes of this section, unless the context otherwise requires, the term:

(a) "Local officer" means:

2. Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state:

d. A planning or zoning board, board of adjustment, board of appeals, community redevelopment agency board, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards.

Under the emphasized language of the statute, above, taken as a whole, we find that membership on the VKAB does not make one a "local officer" required to file financial disclosure. This is because the VKAB is an advisory group having, in the area of land planning and zoning, only the power to make recommendations. This finding is in accord with prior decisions of ours. See, CEO 01-11 and CEO 00-19. In CEO 01-11, we opined that members of a community land-use planning panel were not "local officers" because, after reviewing their powers and duties, it was evident that they only had the power to make recommendations regarding planning and zoning. Similarly, in CEO 00-19, we found that the exception contained in the last clause of Section 112.3145(1)(a)2.d., Florida Statutes, removed appointed members of citizen committees with only the power to make recommendations regarding land-planning and zoning from the definition of "local officer."

In so finding, we are not unaware that the VKAB has other powers (powers in addition to the advisory power regarding land planning or zoning), and that some of those powers arguably are not advisory.² However, these additional powers, in and of themselves, would not bring the VKAB within the listing of the other boards whose members are "local officers" under Section 112.3145(1)(a)2.³ In essence, our reasoning is that the overall intent of Section 112.3145(1)(a)2.d. is not to capture as financial disclosure filers members of those citizen boards whose additional powers would not expressly bring the board within the listing of Section 112.3145(1)(a)2, when the board's only planning or zoning power is of an advisory nature.

Accordingly, we find that members of the VKAB are not "local officers" required to comply with the financial disclosure requirements of Section 112.3145, Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 8, 2018, and RENDERED this 13th day of June, 2018.

____________________________________

Michelle Anchors, Chair

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]The City Code provides that the powers of the VKAB are:

(1) To review any and consider all available information pertaining to the best mode of governance for Virginia Key;

(2) To review and consider what the short and long term vision will be for the Marine Stadium as to its restoration, development, function, use, role and contribution to the city and the community in general;

(3) To oversee and guide all island wide land in relation to recreation , thematic integration, sustainable transportation, impact of climate change, as well as natural and manmade features following the 2010 Master Plan;

(4) To review and consider the best business model for the Marine Stadium to operate in a manner which enriches the city and the community in the arts, recreation, culture, sports and education while operating sustainably and generating sufficient revenues over expenses so that it will function like an enterprise fund which will not need to access the general operating budget of the city on a recurring basis;

(5) To review and consider the planning, maintenance, and operational challenges for Virginia Key in terms of the kinds of open spaces, events, shows, features, goals, objectives and promotions that are consistent with the 2010 Master Plan;

(6) To hold public hearings, public meetings or public workshops to receive and to discuss public input, and to formulate any recommendations, findings or recommendations of the board;

(7) To issue a written report that is made available to the public and make a presentation before the city commission by the board's chairperson at least once per year making recommendations regarding all or any of the foregoing matters and related issues and concerns;

(8) To serve in an advisory capacity to the city commission and recommend any changes to city laws, rules, regulations, practices, policies, or to help the city better promote the restoration, reopening, and success of Marine Stadium and Virginia Key;

(9) To review and recommend to the director of the planning and zoning department for approval or disapproval of applications for any zoning change or future land use plan ("FLUM") amendment to the comprehensive plan on Virginia Key; and

(10) Notwithstanding anything contrary in chapter 18 of the City Code, to review and recommend to the city manager for approval or disapproval of any procurement, as defined in section 18-73, as amended, that exclusively affects Virginia Key.

^[3]Section 112.3145(1)(a)2. provides, in full:

(1) For purposes of this section, unless the context otherwise requires, the term:

(a) "Local officer" means:

2. Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state:

a. The governing body of the political subdivision, if appointed;

b. A community college or junior college district board of trustees;

c. A board having the power to enforce local code provisions;

d. A planning or zoning board, board of adjustment, board of appeals, community redevelopment agency board, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards;

e. A pension board or retirement board having the power to invest pension or retirement funds or the power to make a binding determination of one's entitlement to or amount of a pension or other retirement benefit; or

f. Any other appointed member of a local government board who is required to file a statement of financial interests by the appointing authority or the enabling legislation, ordinance, or resolution creating the board.