CEO 80-85 -- December 4, 1980

FLORIDA MUNICIPAL POWER AGENCY

APPLICABILITY OF THE CODE OF ETHICS TO ALTERNATE DIRECTORS

To: F. Palmer Williams, Attorney, Tallahassee

Prepared by: Phil Claypool

SUMMARY:

Reference is made to CEO 80-28, under the rationale of which alternate directors of the Florida Municipal Power Agency would be "local officers" subject to disclosure if they are "appointed members" of the board of directors of the agency. However, as their title implies, alternate directors are temporary substitutes for the directors who have been appointed to the board with full status as members of the board. An alternate director merely fills in during the absence of his city's regular director and has no right to serve as an officer of the agency or to serve on its executive committee. Because of the informal, temporary nature of the alternates' positions, they are not deemed to constitute "local officers" and therefore are not subject to the requirement of filing statements of financial interests annually.

QUESTION:

Are alternate directors of the Florida Municipal Power Agency "local officers" subject to the requirement of filing financial disclosure annually?

Your question is answered in the negative.

The Code of Ethics for Public Officers and Employees provides that each "local officer" shall file a statement of financial interests annually. Section 112.3145(2)(b), F. S. The term "local officer" is defined to include:

Any appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered an advisory body. [Section 112.3145(1)(a)2., F. S.]

In a previous opinion, CEO 80-28, we advised that the members of the Board of Directors of the Florida Municipal Power Agency are "local officers" subject to the requirement of filing a statement of financial interests annually pursuant to s. 112.3145, F. S. The powers, duties, and composition of the agency are set forth in that opinion and will not be repeated here.

Article III, s. 1 of the interlocal agreement creating the Florida Municipal Power Agency provides:

Composition. The Agency shall consist of the sum of the participating parties and shall be governed by a Board of Directors composed of one director designated in writing by each participating party to this Agreement who shall serve at the pleasure of the party designating him. Participants may appoint in writing such alternate directors as they deem necessary however, such alternates shall be entitled to vote in the absence of the director but not be eligible to be an officer or a member of the Executive Committee.

Regarding alternate directors, you advise in your letter of inquiry that alternates are those persons whom a city commission may decide to send to a board of directors meeting "at the spur of the moment." Thus, some cities have numerous alternates and others have just one or two. In addition, you advise, the alternate directors can change literally from week to week or month to month.

Under the rationale presented in CEO 80-28, alternate directors would be "local officers" if they are "appointed members" of the board of directors of the agency. However, in our view, alternate directors are not members of the board of directors of the agency. As their title implies, these persons are temporary substitutes for the directors who have been appointed to the board with full status as members of the board. An alternate director merely fills in during the absence of his city's regular director and has no right to serve as an officer of the agency or to serve on its executive committee. The fact that cities may have several alternates also emphasizes the informal, temporary nature of the alternates' positions. On these grounds, we perceive a significant distinction between an alternate and a person who is appointed to replace a director, with the expectation that the replacement will assume all the director's obligations and authority.

Accordingly, we find that alternate directors of the Florida Municipal Power Agency are not "local officers" and that they are not subject to the requirement of filing a statement of financial interests annually.