CEO 74-45 -- November 1, 1974

MUNICIPAL OFFICIALS

APPLICABILITY OF DISCLOSURE LAW

To: Stephen C. Watson, Assistant City Attorney, Lakeland

Prepared by: Patricia Butler

SUMMARY:

Categories of persons declared to be public officers for the purpose of part III, Ch. 112, F. S., as amended by Chs. 74-176 and 74-177, Laws of Florida, are explicit and exclusive. 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 "public officer" as given in part III, Ch. 112, supra. The Lakeland assistant city attorney, assistant city manager, director of planning, municipal prosecutor, and municipal public defender are not public officers designated in s. 112.312(7)(i), F. S., and therefore are not subject to those disclosure provisions required of public officers. Similarly, an appointed Lakeland municipal judge is not a public officer since s. 112.312(7), supra, designates only elected judicial officers. However, the Lakeland assistant city attorney, the assistant city manager, the appointed municipal judge, the director of planning, the municipal prosecutor, and the municipal public defender are employees of a municipal governmental agency and must comply with the standards of conduct set forth in part III, Ch. 112, supra, as it relates to employees of agencies.

QUESTIONS:

1. Are an assistant city attorney and an assistant city manager public officers within the meaning of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure provisions as they apply to public officers?

2. Is an appointed municipal judge a public officer within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as they apply to public officers?

3. Are the director of planning, who is the administrative head of the planning department; the municipal prosecutor; and the municipal public defender public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as they apply to public officers?

4. Are the assistant city attorney, assistant city manager, appointed municipal judge, and director of planning employees of an agency within the meaning of part III, Ch. 112, supra, and therefore subject to the disclosure law as it applies to employees of agencies?

Question 1 is answered in the negative.

The definition of a public officer includes in part:

. . . assistant state attorneys, city managers, city attorneys . . . . [Section 112.312(7)(i), F. S., as amended by Ch. 74-177, Laws of Florida.]

If the Legislature had intended assistant city attorneys and assistant city managers to be deemed public officers under this act, it could easily have included them within the statutory definition of that term. However, by expressly stating that assistant state attorneys are public officers for the purposes of this act, other assistants of all enumerated categories in this subsection are implicitly excluded from the definition of "public officer." Accordingly, it is our opinion that the assistant city attorney and the assistant city manager are not public officers as defined in s. 112.312(7), supra. Therefore, they are not subject to those disclosure provisions relating to public officers. See CEO 74-14.

Your second question is answered in the negative.

The definition of a public officer includes in part:

All elected public officers, congressional, executive, judicial, legislative, state, county, municipal or local. [Section 112.312(7)(a), F. S.; emphasis supplied.]

By expressly describing these positions as "elected," all appointed officers of the type mentioned in this subsection are implicitly excluded. Since the municipal judge was appointed instead of being elected to office, he is not a public officer as defined in s. 112.312(7), supra. Therefore, he or she is not subject to those disclosure provisions relating to public officers.

Your third question is answered in the negative.

The definition of a public officer includes:

All sheriffs, tax collectors, tax assessors, supervisors of elections, clerks of the circuit court, chiefs of police, county managers, county administrators, county attorneys, assistant state attorneys, city managers, city attorneys, district school superintendents and appointed heads of city and county planning and zoning boards, city and county building inspectors, members of school boards, members of planning boards, members of zoning boards, and members of planning and zoning boards, or any boards having jurisdiction with respect thereto. [Section 112.312(7)(i), supra.]

The categories 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 directors of planning, municipal prosecutors, and municipal public defenders as public officers. Accordingly, it is our opinion that these persons are not public officers within the meaning of this law. Therefore, they are not subject to those disclosure provisions relating to public officers. See CEO 74-14.

Your fourth question 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. The City of Lakeland, being a municipal governmental entity, is squarely within the meaning of the term "agency." Thus, the assistant city attorney, the assistant city manager, the appointed municipal judge, the director of planning, the municipal prosecutor, and the municipal public defender, as employees of the City of Lakeland, must comply with the standards of conduct set forth in part III, Ch. 112, supra. See CEO 74-14.

The disclosure provisions of s. 112.313(3), F. S., as amended by Ch. 74-177, supra, state 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, these employees must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is to be filed only if they have 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 74-2 and CEO 74-12.