CEO 74-48 -- October 30, 1974

CLARIFICATION OF TERMS IN CODE OF ETHICS

APPLICABILITY TO MEMBERS OF A ZONING DISTRICT BOARD OF ADJUSTMENT

To: Harold B. Wahl, Jacksonville

Prepared by: Jeff Bassett

SUMMARY:

Included within the definition of "public officer" as used in part III, Ch. 112, F. S., as amended by Chs. 74- 176 and 74-177, Laws of Florida, are members of zoning boards or any boards having jurisdiction with respect thereto. Since the Ponte Vedra Zoning District Board is empowered to hear and decide appeals on zoning matters (Ch. 74-677, Laws of Florida, amending s. 7 of Ch. 65- 2171, Laws of Florida), the board clearly has jurisdiction over zoning matters as contemplated by s. 112.312(7)(i), supra. Members of said board are thus public officers subject to the provisions of part III, Ch. 112, supra. Said members must file appropriate disclosure forms prior to twelve o'clock noon of May 15, 1975, if they were appointed to office before July 1, 1974. If appointment has been since that effective date, filing must be within 30 days from the date of appointment. Section 112.3145(1), F. S. In disclosing source of income under s. 112.3145(1)(a), supra, the public officer should give name, address, and description of the business activity or entity. Section 112.312(8), supra. However, the term "stocks and bonds" is not sufficient information to answer the request for a listing of assets. Mr. Wahl should list stocks and bonds held on the New York or American Stock Exchanges as separate items, listed by the business entity in which each is so held. Identification of assets exceeding 15 percent of the officer's total assets should be by type, location, address, or legal description. Section 112.3145(1)(e), supra.

QUESTIONS:

1. Are the members of the Ponte Vedra Zoning District Board of Adjustment subject to the provisions of part III, Ch. 112, F. S., as they apply to public officers?

2. As public officers under part III, Ch. 112, supra, when must members of the Ponte Vedra District Board of Adjustment initially file the financial disclosure statement, CE Form 1?

3. Under paragraph 112.3145(1)(a), F. S., is it a sufficient disclosure of a source of income to say "legal fees from law practice of Loftin and Wahl Offices, 414 Florida Title Building, Jacksonville, Florida"?

4. Under paragraph 112.3145(1)(e), F. S., is it a sufficient listing of assets within one's statement of disclosure to say "stocks and bonds listed on the New York and American Stock Exchanges"?

5. Under what law was the Ethics Commission created and what is its purpose?

6. When will the disclosure forms prescribed by the Commission on Ethics be available, and where may they be obtained?

Your first question is answered in the affirmative.

Included within the meaning of the term "public officer" as defined in part III, Ch. 112, supra, are "members of zoning boards . . . or any boards having jurisdiction with respect thereto." Section 112.312(7)(i), F. S., as amended by Ch. 74-177, supra.

We are of the opinion that the Ponte Vedra Zoning District Board of Adjustment falls within the purview of the section quoted above because of the board's jurisdiction to hear and decide appeals on zoning matters. State law provides that the board shall have the power,

[t]o hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by any administrative official in the enforcement of this act or by any order or resolution adopted pursuant thereto. [Chapter 74-677, Laws of Florida, amending s. 7 of Ch. 65-2171, Laws of Florida.]

As the above-mentioned act was created for the specific purpose of establishing zoning requirements in St. Johns County, it is clear that the Ponte Vedra Zoning District Board of Adjustment has jurisdiction over zoning matters as contemplated by s. 112.312(7)(i), supra. Accordingly, its members are public officers within the meaning of part III, Ch. 112, supra, and are thereby subject to the provisions provided therein.

As to your second question, s. 112.3145(1), F. S., provides that:

A public officer, including persons appointed or elected to serve the unexpired term of any public officer, shall file a statement of disclosure no later than twelve o'clock noon of May 15th of each year, including the May 15th following the last year a public officer is in office . . . . (Emphasis supplied.)

Consistent with familiar rules of statutory construction, we are of the opinion that this requirement must apply prospectively and not retroactively. Accordingly, public officers who were in office at the time this law became effective on July 1, 1974, and who are not candidates for election or reelection between July 1, 1974, and December 31, 1974, must initially file the Financial Disclosure Statement, CE Form 1, prior to twelve o'clock noon of May 15, 1975.

Should any of the members of the board of adjustment have been appointed after the law became effective, those persons must file CE Form 1 "within thirty (30) days from the date of appointment." Section 112.3145(1), supra.

Your third question is answered in the affirmative.

Paragraph 112.3145(1)(a), supra, requires that all public officers and candidates disclose certain income by source. "Source" is defined as "the name, address and description of the business activity or the business entity." Section 112.312(8), F. S., as amended by Ch. 74-177, supra. It is our opinion that the wording set forth in your question above is sufficient disclosure of a source of income under s. 112.3145(1)(a), supra.

Question 4 is answered in the negative.

Paragraph 112.3145(1)(e), supra, requires that the statement of disclosure shall include:

A list of the total assets of each public officer or candidate listed in order of size, excluding any asset which is equal to or less than fifteen percent of the total . . . . (Emphasis supplied.)

We are of the opinion that the meaning of the term "asset" as used above is not so broad as to include all stocks and bonds within one category. Rather, we think that the term "asset" should be limited in respect to stocks and bonds to include only such holdings in one particular business entity. Accordingly, assets held in the form of stocks and bonds on the New York Stock Exchange or American Stock Exchange should be listed separately on the statement of disclosure by the business entities in which they are so held. Only those holdings which exceed 15 percent of the total assets of the public officer or candidate need be included. Identification of such assets should be "only by type, location, address or legal description." Section 112.3145(1)(e), supra.

The Commission on Ethics was created by Ch. 74-176, Laws of Florida, amending part III of Ch. 112, F. S. 1973. Its purpose is,

. . . to serve as guardian of the standards of conduct for the officers and employees of the state and of a county, city, or other political subdivision of the state . . . . [Section 112.320, F. S., as amended by Ch. 74-176, supra.]

It is the duty of the Ethics Commission to: Receive and investigate complaints of violation of the code of ethics; transmit its findings to the person involved and to the official having power to take disciplinary action; render advisory opinions that are binding on the employee or officer seeking such an opinion; and submit to the Legislature from time to time a report of its work and recommendations for legislation designed to strengthen the code of ethics.

The commission is also given the powers to subpoena, audit, and investigate and is authorized to call upon appropriate agencies of state government for any needed professional assistance. See s. 112.322, F. S., as amended by Ch. 74-176, supra.

CE Forms 1 through 4 have been prescribed by the Ethics Commission for disclosure required under part III, Ch. 112, supra. They can now be obtained upon request and without cost from the office of the Secretary of State in Tallahassee or from the office of the Clerk of Circuit Court at every county courthouse.