FINANCIAL DISCLOSURE

APPLICABILITY OF DISCLOSURE LAW TO REGIONAL COUNSEL
AND ASSISTANT REGIONAL COUNSEL IN OFFICES OF
CRIMINAL CONFLICT AND CIVIL REGIONAL COUNSEL

To: Joseph P. George, Jr., Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Third Region (Miami)

SUMMARY:

A Regional Counsel in the Office of Criminal Conflict and Civil Regional Counsel is considered to be a "specified state employee" for purposes of financial disclosure because of his purchasing authority-having the authority to commit to the expenditure of public funds in excess of the statutory threshold. However, an Assistant Regional Counsel in the regional office is not subject to financial disclosure because he or she does not serve as counsel or assistant counsel to a state agency and is not a purchasing agent with the requisite purchasing authority. Therefore, only the Regional Counsel is required to file disclosure pursuant to Section 112.3145, Florida Statutes.

QUESTION:

Are the Regional Counsel and the Assistant Regional Counsel in the Office of Criminal Conflict and Civil Regional Counsel subject to the financial disclosure requirements of Section 112.3145, Florida Statutes?

Your question is answered in the affirmative with respect to the Regional Counsel in the Office of Criminal Conflict and Civil Regional Counsel, and in the negative with respect to the Assistant Regional Counsel.

In your letter of inquiry, you asked only whether the part-time Assistant Regional Counsel hired by your office were required to file financial disclosure. You apparently assumed that the full-time Assistant Regional Counsel were subject to financial disclosure, as are you. Notwithstanding, since the Office of Criminal Conflict and Civil Regional Counsel is a new agency, our response will address the obligations of both you as the Regional Counsel and your Assistant Regional Counsel.

In May 2007, the Florida Legislature enacted Chapter 2007-62, Laws of Florida (the "Act"), to create a revamped system of court-appointed counsel to represent indigent defendants primarily in those cases where the public defender has a conflict. The Act established five Offices of Criminal Conflict and Civil Regional Counsel ("OCCCRC"), which coincide with the geographic boundaries of the five District Courts of Appeal. Each OCCCRC is headed by a Regional Counsel, who is appointed to a four-year term by the Governor from a list of three candidates vetted by the Supreme Court Judicial Nominating Commission. Each Regional Counsel is responsible for hiring Assistant Regional Counsel and other support staff for their respective offices.

Initially, we note that the Florida Supreme Court recently upheld the creation of the five Offices of Criminal Conflict and Civil Regional Counsel and the appointments of Regional Counsel. See Crist v. Florida Association of Criminal Defense Lawyers, Inc., __ So.2d __, 2008 WL 659435 (Fla. March 13, 2008). There, the Appellee had successfully argued to the trial court that the statutory scheme was unconstitutional because Regional Counsel were de facto public defenders who were not subject to the qualifications of the Florida Constitution. Their argument was rejected unanimously by the Florida Supreme Court, which concluded that the Regional Counsel was not a second-tier "appointed" public defender system that competed with or otherwise supplanted public defenders.

With regard to the application of the financial disclosure law, Section 112.3145(1)(c), Florida Statutes, defines "state officer" to include:

1. Any elected public officer, excluding those elected to the United States Senate and House of Representatives, not covered elsewhere in this part and any person who is appointed to fill a vacancy for an unexpired term in such an elective office.

2. An appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body.

3. A member of the Board of Governors of the State University System or a state university board of trustees, the Chancellor and Vice Chancellors of the State University System, and the president of a state university.

4. A member of the judicial nominating commission for any district court of appeal or any judicial circuit.

None of these categories of "state officers" would encompass the Regional Counsel. Therefore, as Regional Counsel, you are not considered to be a "state officer" for purposes of financial disclosure.

Looking next to Section 112.3145(1)(b)1., Florida Statutes, it includes the following definition of "specified state employee:"

Public counsel created by chapter 350, an assistant state attorney, an assistant public defender, a full-time state employee who serves as counsel or assistant counsel to any state agency, the Deputy Chief Judge of Compensation Claims, a judge of compensation claims, an administrative law judge, or a hearing officer.

Since the Florida Supreme Court recently opined that Regional Counsel and their Assistant Regional Counsel were not de facto public defenders, Crist v. Florida Association of Criminal Defense Lawyers, Inc., supra, the only other category within this subsection that would seem to be applicable is that of "a full-time state employee who serves as counsel or assistant counsel to any state agency." However, in CEO 03-12, we noted that trial court staff attorneys did not provide legal advice or counsel to an agency. Instead, their duties were synonymous with those of a law clerk. Here, the Regional Counsel and his or her Assistant Regional Counsel do not provide legal advice or counsel to a state agency, they manage the office and provide legal representation to indigent persons. Therefore, this part of the "specified state employee" definition does not encompass the Regional Counsel or your full-time Assistant Regional Counsel.

The definition of "specified state employee" also includes:

Business managers, purchasing agents having the power to make any purchase exceeding the threshold amount provided for in s. 287.017 for CATEGORY ONE, finance and accounting directors, personnel officers, or grants coordinators for any state agency. [Section 112.3145(1)(b)5., Florida Statutes.]

You have confirmed that you are the only person in the OCCCRC, Third Region, that has authority to make purchases exceeding the threshold amount of $15,000. Therefore, we find that you are a "specified state employees" by virtue of your status as a purchasing agent with the requisite purchasing authority for the agency, and are therefore required to file the annual statement of financial interests (CE Form 1). However, since Assistant Regional Counsel do not have the requisite purchasing authority, they are not subject to financial disclosure.

Accordingly, we find that, as the Regional Counsel for the Office of Criminal Conflict and Civil Regional Counsel, you are considered to be a "specified state employee" for purposes of financial disclosure, due to your status as a purchasing agent with the requisite purchasing authority. Assistant Regional Counsel are not subject to financial disclosure because they do not come within the definition of "specified state employee."

ORDEREDby the State of Florida Commission on Ethics meeting in public session on April 18, 2008 and RENDERED this 23rd day of April, 2008.

____________________________________

Albert P. Massey, III, Chairman