FINANCIAL DISCLOSURE

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO A NON-VOTING
MEMBER OF PLANNING AND ZONING BOARD

To: Name withheld at person's request (Yulee)

SUMMARY:

A non-voting member of a planning and zoning board is required to file financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes.

QUESTION:

Would you, a member of a local planning and zoning board, be required to file financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes, when you have no voting power?

Your question is answered in the affirmative.

Your letter of inquiry and additional information provided to our staff advise that you are the Executive Director of Administrative Services for the Nassau County School District (herein "School District"). You advise that you are not required to file financial disclosure in this capacity. You advise that the Nassau County Board of County Commissioners approved your appointment to the Nassau County Planning and Zoning Board (herein "Board") as the School District representative member on February 21, 2007. You advise that the Board is the local planning agency pursuant to Section 163.3174, Florida Statutes.¹ That Section requires there to be a local planning agency which has among its members a school board representative.

You advise that you were unaware of financial disclosure requirement until you were provided forms by the local Supervisor of Elections.² You also advise that no prior representative of the School District had voting rights.³ You advise your appointment by the Board of County Commissioners was expressly given without voting rights. You further state, "I have no authority in decision-making above or beyond that which a private citizen has." You also advise that you are perceived as different from regular members. One example to which you cite is that you do not receive a stipend but regular members do receive a stipend.

Based on the information you have provided, you inquire whether you are required to file financial disclosure pursuant to Section 112.3145. The answer to this inquiry depends upon whether you are a "local officer" which, in turn, revolves around whether you are a "member."

Section 112.3145(1)(a)2.e, Florida Statutes, defines "local officer" to include:

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 planning or zoning board, board of adjustment, board of appeals, 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.

Section 112.3145 requires all local officers to file financial disclosure as mandated by its provisions. "Local officer" is specifically defined to include members of a local planning and zoning board. "Member" is not defined anywhere in the Code of Ethics for Public Officers and Employees. We are aware of no case law or opinion of the Commission on Ethics defining "member." In construing statutory language we must give consideration not only to the literal and usual meanings of the word, but also to their meaning and effect on the objectives and purpose of the statute's enactment. See Cason v. Florida Dept. of Management Services, 944 So.2d 306 (Fla., 2006). The American Heritage Dictionary, Second College Edition defines member as "a distinct part of a whole" or "a person who belongs to a group or organization."

In an effort to comply with Section 163.3174(1), the Board of County Commissioners added a school board representative as a member of the Planning and Zoning Board. The plain language of Section 163.3174(1) states that the school board representative is a member. You were recommended by the School District to be its representative and were appointed by the Board of County Commissioners. The Board of County Commissioners confirmed their intent by referring to your position as "currently a non-voting member of the Planning and Zoning Board."⁴

In addition to the circumstances surrounding this inquiry, we must also consider the underlying purpose of the financial disclosure law. One aim of the statute is to preserve the public trust of, and raise confidence in, local officers by reminding the officers of their obligation to place their public duties above their own personal interest. Additionally, it provides a vehicle for the public to monitor those serving in positions of public trust. The rationale applies regardless of whether a local officer is authorized to vote because voting is not the only implement of influence. Interpreting "member" to include your position on the Board for purposes of financial disclosure law is consistent with the common definition of "member" and the underlying purposes of the financial disclosure law.

We do not read the last clause of Section 112.3145(1)(a)2.e as providing an exception for individuals who only have the power to make recommendations. That clause expresses the Legislature's intent to exclude members of groups from filing financial disclosure where their group is a collegial body that merely advises a board. ⁵ It does not exclude individuals who are only advisory members of a board whose other members are subject to financial disclosure. In your situation you are a member of the planning and zoning board and, therefore, are a specifically enumerated "local officer."

Upon review of the applicable statutes and definition of "member," we believe that you are a member of the Board despite your non-voting status. As a member of the Board you are a "local officer" pursuant to Section 112.3145(1)(a)2. Therefore, we conclude that you are required to file financial disclosure pursuant to Section 112.3145.

Accordingly, we find that, as a non-voting member of the local planning agency, the planning and zoning board, you are required to file financial disclosure under Section 112.3145, Florida Statutes.

ORDEREDby the State of Florida Commission on Ethics meeting in public session on July 27, 2007 and RENDERED this 1st day of August, 2007.

____________________________________

Albert P. Massey, III, Chairman

^[1] Section 163.3174(1) provides:

The governing body of each local government ... shall designate and by ordinance establish a "local planning agency," unless the agency is otherwise established by law. Notwithstanding any special act to the contrary, all local planning agencies or equivalent agencies that first review rezoning and comprehensive plan amendments in each municipality and county shall include a representative of the school district appointed by the school board as a non voting member of the local planning agency or equivalent agency to attend those meetings at which the agency considers comprehensive plan amendments and rezonings that would, if approved, increase residential density on the property that is the subject of the application.