CEO 74-60 -- November 15, 1974

DISCLOSURE LAWS

APPLICABILITY TO SOUTHEASTERN PALM BEACH COUNTY HOSPITAL DISTRICT EMPLOYEES

To: Neil E. MacMillan, Delray Beach

Prepared by: Patricia Butler

SUMMARY:

In order to be subject to portions of part III, Ch. 112, F. S., as amended by Chs. 74-176 and 74-177, Laws of Florida, applicable to public officers, one's position must be expressly stated within the definition of that term as given in part III, supra. Of the positions of purchasing agent, administrator, assistant administrator, attorney, and accounting staff of the Southeastern Palm Beach County Hospital District, only the purchasing agent is a public officer by virtue of being so named in s. 112.312(7)(j), supra. However, the hospital administrator and assistant administrator are employees of an agency subject to applicable provisions of part III, Ch. 112, supra. The hospital attorney and accounting firm members are not subject to the control of the hospital and have independent businesses. Thus, they are not in the relationship of employer-employee but are independent contractors outside the purview of the disclosure provisions as applied to employees.

QUESTIONS:

1. Are the hospital administrator, the assistant administrator, the attorney, and the accounting firm employed by the Southeastern Palm Beach County Hospital District public officers within the definition of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure provisions as applied to public officers?

2. Are the hospital administrator and the assistant administrator of the Southeastern Palm Beach County Hospital District employees of an agency within the meaning of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to employees of agencies?

3. Are the hospital's attorney and members of the hospital's accounting firm employees of an agency within the meaning of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to employees of agencies?

4. Is the hospital purchasing agent a public officer within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

Question 1 is answered in the negative.

The categories of persons declared to be public officers for the purpose of part III, Ch. 112, supra, are explicit and exclusive. Thus, in order to be subject to those portions of this law which apply to public officers, one's position must be expressly stated within the definition of that term as found in part III, Ch. 112, supra. In the present instance, the law fails to designate hospital administrators and the attorneys and members of accounting firms for hospitals as public officers. Accordingly, it is our opinion that these persons are not public officers within the meaning of this law. Therefore, they are not subject to those disclosure provisions relating to public officers. See CEO 74-15.

Question 2 is answered in the affirmative.

Certain standards of conduct set forth in part III, Ch. 112, supra, apply both to public officers and employees of agencies. As used in this act, "agency" means:

. . . any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department, division, bureau, commission, authority, or special taxing district with authority to exercise the sovereign power of the state. [Section 112.312(1), F. S.; emphasis supplied.]

The Southeastern Palm Beach County Hospital District, a special tax district, was created by Ch. 29387, 1953, Laws of Florida, which states in part, in s. 1:

Be it enacted by the Legislature of the State of Florida: That a special tax district is hereby created and incorporated, to be known as "Southeastern Palm Beach County Hospital District" in Palm Beach County, Florida . . . . (Emphasis supplied.)

The board of commissioners of the hospital district has been granted the power of eminent domain in s. 7, Ch. 29387, supra. This power is a recognized sovereign power of the state. See Adams v. Housing Authority of City of Daytona Beach, 60 So.2d 663 (Fla. 1952).

The hospital district, being a special tax district with the authority to exercise the sovereign power of the state, is squarely within the meaning of the term "agency." Thus the hospital administrator and the assistant administrator, as employees of the hospital district, must comply with the standards of conduct for employees of agencies as set forth in part III, Ch. 112, supra. See CEO 74-12.

The disclosure provisions of s. 112.313(3), F. S., as amended by Ch. 74-177, supra, state in part:

If a public officer or employee of an agency is an officer, director, partner, proprietor, associate or general agent (other than a resident agent solely for service of process) of, or owns a material interest in, any business entity which is granted a privilege to operate, or is doing business with an agency of which he is an officer or employee, he shall file a statement disclosing such facts within forty-five days of becoming an officer or employee or within forty-five (45) days of the acquisition of such position or of such material interest . . . . (Emphasis supplied.)

If applicable, these employees must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is to be filed only if an employee has the type of interest or business conflict described in s. 112.313(3), supra. CE Form 3 is not required to be filed if the response to each question therein would be "none" or "not applicable." See CEO 74-2.

Question 3 is answered in the negative.

The Financial Disclosure Act, Ch. 74-177, Laws of Florida, is designed to reach public officers, candidates, and, in certain instances, state and local governmental employees. While the statute is intentionally broad in nature, it is not meant to reach persons retained on an individual contractual basis. Such persons' status is better equated to that of an independent contractor which is generally stated as: "One who, in exercising an independent employment, contracts to do certain work according to his own methods, without being subject to the control of his employer, except as to the product or result of his work," 41 Am. Jur.2d Independent Contractors s. 1, 1968. The two elements which distinguish an independent contractor from an employee are: The contractor has an independent business or occupation and the contractor is not subject to the control of the employer as to manner or detail of performance of the contracted work. See CEO 74-6.

In the present case, both the attorney and the accounting firm have independent business other than working for the hospital district. Also, the attorney and the accounting firm are not subject to the control of the hospital district as to how to perform their responsibilities for the district. We consider both the attorney and the accounting firm for the hospital district to be independent contractors. Therefore, it is our opinion that they are outside the purview of the disclosure provisions as applied to employees.

Question 4 is answered in the affirmative.

A public officer is defined to include "[p]urchasing agents for any agency or persons having the power normally conferred to purchasing agents by whatever title." (Emphasis supplied.) Section 112.312(7)(j), F. S. As previously determined in question 2, the hospital is an agency for purposes of this act. Thus, a hospital purchasing agent is a public officer within the definition of s. 112.312(7)(j), supra, and is therefore subject to the disclosure provisions of part III, supra, as they apply to public officers.