CEO 75-23 -- February 14, 1975

CITY EMPLOYEES

APPLICABILITY OF PART III, CH. 112, AS AMENDED BY CH. 74-177; STATUTORY INTERPRETATION OF CH. 74-177 AND s. 286.013, F. S.

To: J. H. Roberts, Jr., 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 Ch. 74-177, Laws of Florida, are explicitly named within the definition of that term. Since electrical and plumbing inspectors are not so named, they are not public officers subject to applicable disclosure provisions. While "city and county building inspectors" are so designated [s. 112.312(7)(i), supra], only the chief building inspector is considered a public officer. Similarly, subordinate inspectors do not come within the meaning of "public officer" but are, by virtue of their employment with a municipal agency, within the provisions of disclosure laws as they apply to employees of agencies. Sections 112.313 and 112.312(1), supra.

Although the title language of s. 112.314, supra, refers to legislators and legislative employees, the text of subsection (2), which is controlling, applies to public officers. Despite the apparent contradiction between the voting prohibition of s. 286.012, F. S. 1973, and the option for voting abstention of s. 112.314(2), supra, the two statutes merely present the public officer with alternatives in the event of a conflict of interest situation. The officer may either vote on the matter or abstain from voting, according to conscience. However, the public officer must in all conflict of interest instances file a written statement of disclosure. Certain statutes, regulations, or ordinances require a public officer or employee to be a member of a particular profession or field in order to qualify for a particular office or employment with an agency. In such instances, there will be no conflicting employment for purposes of s. 112.313(5), supra.

QUESTIONS:

1. Are electrical and plumbing inspectors 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 law as it applies to public officers?

2. Are persons acting as subordinate building inspectors for the chief building inspector public officers within the meaning of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to public officers?

3. Are persons acting as subordinate building inspectors 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?

4. Under s. 112.312(7)(b), F. S., as amended by Ch. 74-177, Laws of Florida, what is the meaning of "advisory board members"?

5. Does s. 112.314(2), F. S., as amended by Ch. 74-177, Laws of Florida, apply to public officers?

6. Is there a statutory contradiction between the language of s. 286.012, F. S. 1973, and the language of s. 112.314(2), F. S., as amended by Ch. 74-177, supra, concerning voting by public officers?

7. When are public officers who are appointed after July 1, 1974, required to file a disclosure statement?

8. Is there a prohibited conflict of employment under s. 112.313(5), F. S., Ch. 74-177, Laws of Florida, where in order for a person to qualify as a public officer or employee of an agency he must be in such an occupation or profession which is subject to the regulation of, or doing business with, the agency of which the person is a public officer?

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, is 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 electrical and plumbing inspectors as public officers. Accordingly, it is our opinion that these inspectors are not public officers within the meaning of this law. Therefore, they are not subject to those disclosure provisions relating to public officers.

Question 2 is answered in the negative.

The definition of the term "public officer" includes "city and county building inspectors." Section 112.312(7)(i), supra. We are of the opinion that this particular reference applies only to the chief building inspector in the city or county. Therefore, all subordinate inspectors who are under the supervision of the chief inspector do not come within the definition of "public officer" for purposes of this law.

Question 3 is answered in the affirmative.

The standards of conduct set forth in s. 112.313, 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., as amended by Ch. 74-177, supra. The City of Lakeland, being a municipal governmental entity, is squarely within the meaning of the term "agency." Thus, persons acting as subordinate building inspectors and electrical and plumbing inspectors, as employees of the City of Lakeland, 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, 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. . . .

If applicable, persons acting as subordinate building inspectors and electrical and plumbing inspectors must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is to be filed only if the employees have the type of interest or business conflicts 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.

As to question 4, enclosed please find a copy of a previous opinion of this commission, CEO 74-4, which answers this question.

Question 5 is answered in the affirmative.

Although the title of s. 112.314, supra, indicates that this section deals with additional standards of conduct for legislators and legislative employees, subsection (2) specifically states:

No public officer shall be prohibited from voting on any matter in his official capacity. However, when the matter being considered directly or indirectly inures to the public officer's particular private gain, as opposed to his private gain as a member of a special class or creates a conflict between such officer's private interests and his public duties he may abstain from voting on the matter and shall file a statement explaining the conflict with the appropriate officials. [Section 112.314(2), supra; emphasis supplied.]

In this case, the actual statutory language must control over the title of the section. Therefore, s. 112.314(2), supra, applies to public officers as defined in s. 112.312(7), supra.

Your sixth question is answered in the negative.

Section 286.012, F. S. 1973, states:

No member of any state, county, or municipal governmental board, commission, or agency who is present at any meeting of any such body at which an official decision, ruling, or other official act is to be taken or adopted may abstain from voting in regard to any such decision, ruling, or act, and a vote shall be recorded or counted for each such member present, except when with respect to any such member, there is or appears to be a possible conflict of interest under the provisions of s. 112.311, s. 112.313, s. 112.314, s. 112.315 or s. 112.316. In such cases said member shall comply with the disclosure requirements of s. 112.313.

Section 112.314(2), F. S., as amended by Ch. 74-177, supra, states:

Read in conjunction, the two statutes state that no public officer may abstain from voting unless there is a conflict of interest situation. At that point, the public officer looks to s. 112.314(2), supra, which gives him two alternatives: Either to vote on the matter or to abstain from voting. Read in this manner, there is no contradiction between the two statutes. When a conflict situation arises, the public officer must file a disclosure statement regarding the issue and the conflict of interest presented; whether or not to abstain from voting is a decision solely within the officer's discretion.

As to question 7, public officers who were appointed after July 1, 1974, the date this law took effect, must file their disclosure statements within 30 days from their date of appointment. Section 112.3145(1), supra.

Question 8 is answered in the negative.

Section 112.313(5), supra, states in part:

No public officer or employee of an agency shall accept other employment with any business entity subject to the regulation of, or doing business with, an agency of which he is an officer or employee . . . .

We are of the opinion that this section of the law should not be construed to include persons who are required to be in a certain occupation or profession in order to hold a particular public office or employment. This is true even though the person's private employment is subject to the regulation of, or the person is doing business with, the agency of which he is a public officer or employee. For example, if a person is required by statute, ordinance, regulation, or other law to be a plumber in order to serve on a Board of Plumbing Examiners, he would not be subject to the prohibition set forth in s. 112.313(5), supra.

We thus conclude that, where a person is required to be in a particular profession or field of employment in order to qualify for a particular public office or position of employment with an agency, there will be no conflicting employment for purposes of s. 112.313(5), supra.