CEO 74-68 -- November 25, 1974

(Reconsidered; see CEO 75-158)

ADVISORY BOARDS

DUTIES AND FUNCTIONS DETERMINATIVE OF BOARDS WITH "ADVISORY" STATUS

To: David Bruner, Collier County Attorney, Naples

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Members of the Coastal Area and Immokalee Area Planning and Zoning Commissions are public officers subject to provisions set forth in part III, Ch. 112, supra. See CEO 74-18. Since the water management, parks and recreation, and environmental boards have jurisdiction over planning and zoning matters, members of these boards are also public officers within the meaning of s. 112.312(7)(j), supra. Section 112.3145(1)(a), supra, requires public officers to disclose each source of income which constitutes 10 percent or more of the officer's gross income. Guided by Internal Revenue Code ss. 61 and 1201, gross income is defined as all income from whatever source, including capital gains, short or long term. Only capital gains producing 10 percent or more of the officer's gross income need be listed on CE Form 1. However, s. 112.3145, supra, excludes income from dividends or interest. Therefore, interest from the corpus of an irrevocable trust (which in this case constitutes the sole income of the public officer) is excluded from the income disclosure statement, CE Form 1.

QUESTIONS:

1. Are the members of a water management board, an environmental advisory council, a parks and recreation advisory board, the Coastal Area Planning and Zoning Commission, and the Immokalee Area Planning and Zoning Commission public officers within the meaning of the term as used in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida?

2. Must capital gains, short or long term, be disclosed as an income source for purposes of s. 112.3145(1)(a), F. S., as amended by Ch. 74-177, Laws of Florida?

3. Must interest earned from the corpus of an irrevocable trust which makes up more than 10 percent of a public officer's gross income be listed on CE Form 1 as a source of income?

Question 1 is answered in the affirmative in all instances.

Section 112.312(7)(j), F. S., as amended by Ch. 74-177, Laws of Florida, states in part that a public officer includes:

. . . 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. (Emphasis supplied.)

Our position on this provision is that "[t]his language, in its specificity, must control over Section 112.312(7)(b), F. S., . . . ." See CEO 74-18. Under this interpretation, whether the board is advisory is of no consequence; if the board is a planning or zoning board or if it has jurisdiction with respect to such matters, its members are public officers under s. 112.312(7)(j), F. S.

In regard to the members of the Coastal Area and Immokalee Area Planning and Zoning Commissions, both are within the specific enumerated categories set out in s. 112.312(7)(j), supra, and are therefore public officers within the meaning of that term as used in part III, Ch. 112, supra. Whether the other boards mentioned are within the same section is dependent on whether they have jurisdiction with respect to planning or zoning matters.

In your correspondence, you have stated that the water management, parks and recreation, and the environmental boards advise the county commission on matters related to land use. More specifically, these boards make recommendations to the county commission in regard to matters of land use planning as well as land and zoning regulation concomitant to land use planning. We therefore conclude that these boards, like the others, have jurisdiction with respect to planning and zoning matters, and their members thus are public officers within the meaning of the term as defined in s. 112.312(7)(j), supra.

As to your second question, that portion of the Code of Ethics requiring a disclosure of one's sources of income states in part:

All public officers and candidates shall disclose the source of all income that constitutes ten percent (10%) or more of such person's gross income for the preceding taxable year, excluding dividends or interest moneys received from guardianship, alimony, child support, retirement or disability compensation and other compensation derived from any level of government service, or any contribution as defined by sections 106.08 and 111.011, F. S. . . . . [Section 112.3145(1)(a), F. S., as created by Ch. 74-177, supra; emphasis supplied.]

In order to be a source of income which must be disclosed, the source must constitute 10 percent or more of one's gross income. Section 112.3145(1)(a), supra. In the absence of a definition in part III, supra, we hereby define the phrase "gross income" to mean all income from whatever source derived. We are guided in our choice of this definition by s. 61 of the Internal Revenue Code (hereinafter I.R.C.). Furthermore, since the I.R.C. requires capital gains to be reported as an addition to one's gross income (see I.R.C. s. 1201), we believe this to be persuasive authority in our decision to include them for the purposes of s. 112.3145(1)(a), supra. The quoted statutory language requiring a listing of "all income" is also supportive of our view that capital gains must be included. However, as noted earlier only those capital gains which produce 10 percent or more of one's gross income for the preceding taxable year must be listed on the Financial Disclosure Statement, CE Form 1. Section 112.3145(1)(a), supra.

Question 3 is answered in the negative.

In s. 112.3145, supra, a public officer is required to report those sources of income that make up 10 percent or more of his gross income. This section also excludes from this report income from "dividends or interest." See also the instructions to CE Form 1, the Financial Disclosure Statement.

As you have stated, the income that said public officer receives is strictly from the interest that the corpus of the irrevocable trust earns. Under these facts, we feel that the funds distributed to the public officer retain their original nature; since that was "interest," they are excluded from the report on sources of income as required to be listed on CE Form 1 by a public officer or candidate.