FINANCIAL DISCLOSURE

APPLICABILITY OF NEWLY ENACTED LEGISLATION TO
EXPRESSWAY AUTHORITY BOARD MEMBERS

To: Bruce Giles-Klein, Esquire, Counsel for Miami-Dade County Expressway Authority

SUMMARY:

The opinion answers a series of questions on the applicability of a change in the law governing financial disclosure for members of the Miami-Dade County Expressway Authority. The provision in Section 53, Chapter 2007-196, Laws of Florida, which requires Authority members to file Full and Public Disclosure of Financial Interests (CE Form 6), became effective on July 1, 2007, and governs future filings by Expressway Authority Board members. As a substantive change in the law, it does not apply retroactively to Board members who were serving as of December 31, 2006, and who have already filed their CE Form 1 or will file the CE Form 1 before September 1, 2007. Board members who left office after January 1, 2007, but before December 31, 2007, should file the CE Form 1F. Board members appointed after July 1, 2007 are not required to file any disclosure within 30 days of their appointment, but they will be required to file a CE Form 6 by July 1, 2008, or a CE Form 6F within 60 days of leaving office.

QUESTION:

What are the disclosure obligations for former, current, and newly appointed members of the Miami-Dade County Expressway Authority as a result of the recently enacted legislation which became effective on July 1, 2007, and which requires the Authority's Board members to file Full and Public Disclosure of Financial Interests (CE Form 6)?

Your questions are answered as follows.

In your letter of inquiry as well as earlier correspondence between the Authority's Executive Director and our Executive Director, we are advised that this opinion is sought on behalf of the members of the Miami-Dade County Expressway Authority (MDX). In May 2007, the Florida Legislature passed an amendment to Section 348.0003, Florida Statutes, which effectively requires members of the MDX Authority to comply with the disclosure requirements of Article II, Section 8, Florida Constitution. See Section 53, Chapter 2007-196, Laws of Florida. This enactment was approved by the Governor on June 19, 2007, and took effect on July 1, 2007. Previously, members of the MDX Authority were considered to be "local officers" pursuant to Section 112.3145(1)(a)2.b., Florida Statutes, and required to file the less detailed Statement of Financial Interests (CE Form 1). The issue then, is how the legislative change to the financial disclosure obligation for MDX Authority members applies to various scenarios.

In Morris v. Swanson, 940 So.2d 1256, 1258 (Fla. 1st DCA 2006), the court held:

'The general rule [of statutory construction] is that a substantive statute will not operate retrospectively absent clear legislative intent to the contrary, but that a procedural or remedial statute is to operate retrospectively.' See Life Care Centers v. Sawgrass Care Center, 683 So.2d 609, 613 (Fla. 1st DCA 1996), quoting State Farm Mutual Automobile Insurance Co. v. Laforet, 658 So.2d 55, 61 (Fla.1995). 'Statutes that relate only to procedure or remedy generally apply to all pending cases,' but a substantive law that interferes with vested rights will not be applied retrospectively. See Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475, 477 (Fla.1995). Substantive statutes either create or impose a new obligation or duty, or impair or destroy existing rights. See Alamo Rent-A-Car v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994). Consequently, an act designed to serve a remedial purpose will not be applied retroactively, when it is clear that doing so 'would attach new legal consequences to events completed before its enactment.'See Arrow Air, Inc. v. Walsh, 645 So.2d 422, 425 (Fla.1994).

In our view, this is a substantive change in the law and, despite providing for an effective date of July 1, 2007, there is no clear indication that the Legislature intended the change to apply retroactively. Moreover, in CEO 74-38 and CEO 74-48, we opined that, "consistent with familiar rules of statutory construction," the requirement that public officers file financial disclosure within thirty days of appointment and annually thereafter applied prospectively, not retroactively.

Consequently, an MDX Authority Board member who was serving in that capacity on December 31, 2006, and who has already filed a CE Form 1 prior to the July 1, 2007 due date would not be required to file any additional disclosure. Board members who were serving as of December 31, 2006 but who have not yet filed, should file the CE Form 1 before the end of the grace period on September 1, 2007. An MDX Authority member who was appointed to the Board between January 1, 2007 and July 1, 2007, and who filed a CE Form 1 within 30 days of appointment, would not be required to file any additional disclosure during 2007 unless he or she leaves office prior to December 31, 2007. Then, the Board member would be required to file the CE Form 1F. A Board member appointed after July 1, 2007, will not be required to file a CE Form 1 within 30 days of appointment as there is no similar provision in Article II, Section 8, Florida Constitution, or Section 112.3144, Florida Statutes. However, the Board member will be required to file a CE Form 6 by July 1, 2008, or a CE Form 6F if he or she leaves office prior to December 31, 2007.

Your questions are answered accordingly.

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