CEO 75-9 -- January 6, 1975

MUNICIPAL BOARDS

APPLICABILITY OF PART III, CH. 112, F. S., TO VARIOUS MUNICIPAL BOARDS

To: William G. Miller, Jr., City Attorney, City of Wilton Manors

Prepared by: Patricia Butler

SUMMARY:

The term "public officer" as defined in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, includes all members of all boards, however selected, excluding members of a board whose powers are solely advisory. Therefore, disclosure provisions as applied to public officers are applicable to members of all Wilton Manors municipal boards whose powers are of a regulatory and/or policymaking nature. Wilton Manors municipal boards so categorized include Zoning, Civil Service, Adjustment, Police Civil Service, Recreation, and Library, especially where those boards are empowered to adopt, enact, and amend rules and regulations or to supervise, operate, and control facilities.

QUESTIONS:

1. Are members of the Wilton Manors Zoning Board public officers within the definition of part III, Ch. 112, F. S., and therefore subject to the disclosure provisions as applied to public officers?

2. Are members of the Wilton Manors Board of Adjustment public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

3. Are members of the Wilton Manors Civil Service Board public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

4. Are members of the Wilton Manors Police Civil Service Board public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

5. Are members of the Wilton Manors Recreation Board public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

6. Are members of the Wilton Manors Library Board public officers within the definition of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

As to your first question, enclosed please find a copy of a previous opinion of this commission, CEO 74-18, which is equally applicable to your question. This question is therefore answered in the affirmative.

Question 2 is answered in the affirmative.

The term "public officer" is defined to include "[m]embers of boards, commission, authorities, special taxing districts, and the head of each state agency, however selected but excluding advisory board members." (Emphasis supplied.) Section 112.312(7)(b), supra.

The broad language of this definition indicates that all board members are within the definition of the term "public officer" unless the board is advisory in nature. An advisory board has been determined by the Ethics Commission to mean a board whose powers are solely advisory.

The responsibilities of the Board of Adjustment include the power to authorize variances and special exceptions to zoning ordinances; to grant temporary permits for nonconforming uses; and to modify or reverse official rulings on enforcement of zoning regulations. Wilton Manors Code, s. 30-85. These powers are of a regulatory nature, having a policymaking and binding effect. Such powers are not advisory in nature. We must therefore conclude that the members of the Board of Adjustment are public officers for purposes of this law and are subject to the provisions of part III, Ch. 112, supra, governing public officers. See CEO 74-20.

Question 3 is also answered in the affirmative.

As stated in question 2, the definition of a public officer includes all members of boards, excluding only those which act solely in an advisory capacity.

The responsibilities of the Civil Service Board include the power to adopt, enact, and amend a code of rules and regulations. This code is to have the force and effect of a law on employees of administrative departments. Wilton Manors Charter, Art. XII, s. 5. The board shall also provide examinations and maintain lists of persons eligible to appointment in administrative departments. (Section 6)

These powers are of a regulatory and policymaking nature. This being so, the Civil Service Board's powers are not solely advisory. Therefore, we are of the opinion that members of the Civil Service Board are public officers and are subject to those provisions of part III, Ch. 112, supra, which relate to public officers. See also CEO 74-31 in which we held that members of the Margate Civil Service Board were public officers under the definition of this law.

Question 4 is answered in the affirmative.

As stated in questions 2 and 3, the definition of a public officer includes all members of boards, excluding only those which act in a solely advisory capacity.

The responsibilities of the Police Civil Service Board are somewhat similar to the powers of the Wilton Manors Civil Service Board. See question 2. The board has the power to adopt, enact, and amend a code of rules and regulations. This code has the force and effect of law on employees of the police department. The board is also authorized to make investigations concerning the enforcement of the code. Wilton Manors Code, s. 2-55. These powers are of a regulatory and policymaking nature. Consequently, the Police Civil Service Board's powers are not solely advisory. Therefore, we are of the opinion that members of this board are public officers and are subject to the provisions of part III, Ch. 112, supra, governing public officers.

Question 5 is also answered in the affirmative.

As stated earlier in this opinion, the only board members excluded in s. 112.312(7)(b), supra, are those members of boards acting in a solely advisory capacity.

In the case of the Recreation Board, it is clear that its powers are more than advisory in nature. It exercises supervisory control over all recreational facilities in the city, as well as Hagen Park and Mickel Field. Wilton Manors Code, s. 20-2(a) and (b). It also has the power and authority to receive and accept gifts and donations for the advancement of the city's recreational facilities. Wilton Manors Code, s. 20-3. With such supervisory powers, it is clear that the members of this board do not fall within the exception of solely advisory board members. Therefore, members of the Recreation Board are public officers for purposes of this law and are subject to the provisions of part III, Ch. 112, supra, governing public officers.

Question 6 is answered in the affirmative.

The Library Board is empowered to operate the Wilton Manors Public Library. Wilton Manors Code, s. 16-2(a). As stated in s. 16- 3(a):

The library board shall operate said library under accepted library standards and shall have full power in all matters concerning the library under the supervision of the city council.

It is clear that the power given to the Library Board is regulatory in nature, not advisory. Therefore, the members of this board are deemed to be public officers and are subject to the provisions of part III, Ch. 112, supra, relating to public officers.