CEO 75-12 -- January 6, 1975

UTILITY AUTHORITY BOARD

MEMBERS WITHIN DEFINITION OF "PUBLIC OFFICER"

To: Charles B. Butman, Attorney, Fort Lauderdale

Prepared by: Patricia Butler

SUMMARY:

The definition of the term "public officer" contained in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, includes members of boards, commissions, and authorities having powers which are other than advisory. The determination of public officer status depends not on the name given to the municipal entity but on the function of that entity. The Margate Utility Authority Board exercises a municipal function in close cooperation with the City Commission and is, thereby, an entity within the purview of this act. Further, the board has the power to administer the Margate Utility Authority and to operate related facilities. The board is thus a policymaking and regulatory body whose members are public officers subject to applicable provisions for financial disclosure.

QUESTION:

Are members of the Margate Utility Authority Board public officers within the definition of that term as used in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure provisions as applied to public officers?

This question is answered in the affirmative.

The definition of a public officer includes "[m]embers of boards, commissions, authorities . . . however selected but excluding advisory board members." [Section 112.312(7)(b), supra; emphasis supplied.]

The primary issue which you have presented is whether the Margate Utility Board, which owns and operates the water and sewer systems in Margate, is a municipal "board" for purposes of this law. As stated in your letter, the city commission has the power to appoint the board of directors for the authority. The board and the city council also hold joint meetings. Under provisions of s. 180.14, F. S. 1973, the city commission has the power to set the rates and charges to be made by a private company operating municipal public works. The authority also has entered into a declaration of trust, stating that the water and sewer systems would be turned over to the citizens of Margate when the authority's bond indebtedness is repaid.

The relationship between the Margate Utility Authority and the City of Margate is obviously a close one. We must conclude that the authority is exercising a municipal function and is therefore a board for purposes of this act.

The next determination which must be made is whether this board acts in an advisory capacity, thus excluding its members from the definition of the term "public officer." We have determined that, in order to come within this exclusion, the functions of a board must be solely advisory in nature. See CEO 74-22.

As you have stated in your inquiry, the board has the power to run the Margate Utility Authority and to make the decisions concerning the authority. The board maintains an office for the payment of bills, bookkeeping, and other such functions. It also operates sewer treatment and water purification plants. These functions are not advisory in nature. Thus, the members of the board do not come within the advisory board exclusion. We therefore conclude that the Margate Utility Authority Board members are public officers under s. 112.312(7)(b), supra, and must comply with the disclosure provisions of part III, Ch. 112, F. S., which relate to public officers.