CEO 74-76 -- November 25, 1974

PUBLIC OFFICER

CITY EMPLOYEES AND BOARD MEMBERS AS CONSTITUTING PUBLIC OFFICERS

To: Guy L. Kennedy, Jr., Assistant City Attorney, Clearwater

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Since the planning director and chief planners of Clearwater are not members of the Planning and Zoning Board and are not included within the definition of the term "public officer" as found in s. 112.312, F. S., as amended by Ch. 74-177, Laws of Florida, the director and planners are not public officers for the purposes of disclosure pursuant to part III, Ch. 112, supra. Similarly, the assistant city manager and the administrative assistant to the city manager, both full- time appointed city employees, and the assistant city attorney, city judges, and city prosecutor, all part- time appointed employees, are not included within the statutory definition of "public officer." The Building Contractors Examining Board, Electrical Examining Board, Board of Plumbing Examiners, Board of Roofing Examiners, and Gas Fitters Examining Board in Clearwater have the regulatory power to examine applicants for trades practice, to certify applicant qualification through license or certificate issuance, and to deny these certifications. By virtue of these regulatory powers, the board members are public officers within s. 112.312(7)(b), supra. Similarly, the Plumbing Advisory Board is empowered to hear appeals and to render binding decisions. Code of the City of Clearwater, s. 109.8(3). The advisory board thus is not solely advisory but has policymaking powers which classify board members as public officers within the meaning of s. 112.312(7)(b), supra.

QUESTIONS:

1. Are the planning director and chief planners, assistant and administrative assistants to the city manager, assistant city attorney, city judges, and city prosecutor of the City of Clearwater "public officers" within the meaning of the term as defined in part III, Ch. 112, F. S., as amended by Ch. 74- 177, Laws of Florida?

2. Are members of the Building Contractors Examining Board, Electrical Examining Board, Board of Plumbing Examiners, Board of Roofing Examiners, and Gas Fitters Examining Board public officers within the meaning of part III, Ch. 112, supra?

3. Are members of the Plumbing Advisory Board public officers within the meaning of part III, Ch. 112, supra?

Question 1 is answered in the negative with respect to each of the positions in question.

The planning director and chief planners are full-time employees of the City of Clearwater. They are not members of the planning and zoning board and are not otherwise included within the definition of the term "public officer" as found in s. 112.312, F. S., as amended by Ch. 74-177, supra.

The positions of assistant city manager and administrative assistant to the city manager are full-time employees of the city appointed by the city manager. These positions are not listed in the definition of the term "public officer" contained in s. 112.312(7), supra, and are therefore not within the meaning of that term as used in part III, Ch. 112, supra.

The assistant city attorney, city judges, and city prosecutor are part-time employees appointed by the city commission. These positions are not included within the exclusive listing of what constitutes a public officer, and therefore the provisions of the Code of Ethics relating to public officers do not apply to them.

Note, however, that although these city employees are not public officers based upon their job titles, they still may be "public officers" if they have "the power normally conferred to purchasing agents by whatever title." Section 112.312(7)(j), supra.

Question 2 is answered in the affirmative.

Each of the above named boards is charged with the official duty of examining applicants who seek to practice particular trades and certifying their qualifications by issuing to them licenses or certificates. The power to include is also the power to exclude. Having such regulatory power, these boards cannot be considered solely advisory. We must therefore conclude that the members of these boards are public officers within s. 112.312(7)(b), supra, which states that the term "public officer" includes "[m]embers of boards . . . however selected but excluding advisory board members."

Question 3 is answered in the affirmative.

One of the enumerated duties of the Plumbing Advisory Board is to hear appeals "from licensed Master Plumbers of the City of Clearwater where there exist differences in interpretation of the Code of the City of Clearwater, Section 109.8(3)." Commensurate with this power is the power to render a binding interpretation of the code. Based upon these facts, it is apparent that the Plumbing Advisory Board is making a final decision, and therefore it cannot be classified as an advisory board for the purposes of defining "public officers." The Plumbing Advisory Board's members must thus be classified as public officers within the definition of that term. Section 112.312(7)(b), supra.