CEO 74-22 -- October 14, 1974

PUBLIC OFFICERS

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO

MEMBERS OF MUNICIPAL BOARDS AND AUTHORITIES

To: G. Robert Fellows, City Attorney, Delray Beach

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

A public officer as defined in s. 112.312(7)(b), F. S., as amended by Ch. 74-177, Laws of Florida, includes a member of a board or an authority regardless of means of compensation or selection. Exception to financial disclosure laws for public officers is made only if the board or authority serves a solely advisory function; a board or authority having policymaking powers in addition to an advisory role is not considered to be solely advisory. The Delray Beach Downtown Development Authority, at the time of its establishment by the Legislature (Ch. 71-604, Laws of Florida), was empowered to enter contracts, control funds, exercise the power of eminent domain, and levy ad valorem tax. Section 5-13, Ch. 25784, 1949, Laws of Florida, authorizes the Civil Service Board of Delray Beach administrative powers, including setting salaries of municipal employees, conducting hearings and investigations, and rendering decisions in the event of discharge of an employee. Thus, the Downtown Development Authority and the Civil Service Board of Delray Beach are policymaking agencies whose members are public officers under the purview of part III, Ch. 112, F. S.

QUESTION:

Are members of the Downtown Development Authority and the Civil Service Board of the City of Delray Beach public officers within the meaning of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida?

In both instances, your question is answered in the affirmative.

A "public officer" is defined in the code of ethics to include" [m]embers of boards, commissions, authorities, special taxing districts . . . however selected but excluding advisory board

members." Section 112.312(7)(b), F. S., as amended by Ch. 74-177, supra. Further, no delineation is made on the basis of whether the members of such bodies serve with compensation or on a pro bono basis.

Since the members of the Downtown Development Authority and the Civil Service Board are within the purview of the law as members of an authority and a board, respectively, we must determine whether these bodies are advisory in nature and are excluded from the application of the law to public officers. It is our view that if any nonadvisory functions are legally assigned, delegated, or exercised by the body in addition to whatever advisory functions it may have, it is not solely advisory and its members are therefore deemed to be public officers within the meaning of the act.

The Downtown Development Authority was established by a special act of the Legislature. Chapter 71-604, Laws of Florida. Among its listed powers are the power to enter contracts, to manage property, to control funds, to exercise power of eminent domain, and to levy an ad valorem tax. Id. at ss. 7 and 8. Likewise, the Civil Service Board possesses certain administrative powers, such as the power to set the salary of municipal employees, to promote employees, and, if an employee is discharged, to conduct an investigation, hold a hearing, and render a binding decision as to the propriety of such discharge. Section 5-13, Ch. 25784, Laws of Florida, 1949.

It is apparent from an analysis of the powers of these agencies that they are not advisory in nature. On the contrary, they have a binding effect on the municipality and bear policymaking characteristics in their own right. This being so, neither the Downtown Development Authority nor the Civil Service Board can be classified as "advisory boards." The members of these bodies are thus within the definition of the term "public officer," s.112.312(7)(b), supra, and are subject to those provisions of part III, Ch. 112, supra, governing public officers.