CEO 74-17 -- October 10, 1974

CODE OF ETHICS

APPLICABILITY TO TOWN CLERK

To: Earl B. Drew, Town Clerk, Jennings

Prepared by: Patricia Butler

SUMMARY:

Town clerks are not expressly designated as public officers within the categories given in definition of that term in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida. Since the town clerk of Jennings is not so designated and does not have purchasing agent powers, he is not subject to disclosure provisions as they apply to public officers. However, since the Town of Jennings is a municipal entity, the town clerk is an employee of an agency as that term is defined in s. 112.312(1), supra, and as such must comply with the standards of conduct and disclosure provisions set forth in part III, Ch. 112, supra.

QUESTIONS:

1. Is the town clerk of the Town of Jennings a public officer within the definition of part III, Ch. 112, F. S., and therefore subject to the disclosure law as it applies to public officers?

2. Is the town clerk of Jennings an employee of an agency within the meaning of part III, Ch. 112, F. S., supra, and therefore subject to the disclosure law as it applies to employees of agencies?

Your question 1 is answered in the negative.

The category of persons declared to be public officers for the purpose of part III, Ch. 112, supra, are explicit and exclusive. Thus, in order to be subject to those portions of this law which apply to public officers, one's position must be expressly stated within the definition of that term as found in part III, Ch. 112, supra. In the present instance the law fails to designate town clerks as public officers. Accordingly, it is our opinion that the town clerk is not a public officer within the meaning of this law. Therefore, he or she is not subject to those disclosure provisions relating to public officers. We emphasize that this opinion is based only on the factual situation which you have stated in your request for an official opinion. Therefore, we have not addressed the possibility that you as town clerk may be a public officer by virtue of having purchasing agent powers. See s. 112.312(7)(j), F. S., as amended by Ch. 74-177, supra.

Your question 2 is answered in the affirmative.

The standards of conduct set forth in part III, Ch. 112, supra, apply both to public officers and employees of agencies. As used in this act, "agency" means: "any state, county, local, or municipal governmental entity . . . ." (Emphasis supplied.) Section 112.312(1), F. S., amended by Ch. 74-177, supra. The Town of Jennings, being a municipal governmental entity, is squarely within the meaning of the term "agency." Thus, the town clerk, as an employee of the Town of Jennings, must comply with the standards of conduct set forth in part III, Ch. 112, supra.

The disclosure provisions of s. 112.313(3), F. S., as amended by Ch. 74-177, supra, states in part:

If a public officer or employee of an agency is an officer, director, partner, proprietor, associate or general agent (other than a resident agent solely for service of process) of, or owns a material interest in, any business entity which is granted a privilege to operate, or is doing business with an agency of which he is an officer or employee, he shall file a statement disclosing such facts within forty-five days of becoming an officer or employee or within forty-five (45) days of the acquisition of such position or of such material interest. . . . (Emphasis supplied.)

If applicable, the town clerk must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is to be filed only if the town clerk has the type of interest or business conflict described in s. 112.313(3), supra. CE Form 3 is not required to be filed if the response to each question therein would be "none" or "not applicable." See CEO 74-02.