CEO 75-142 -- July 9, 1975

GAS DISTRICT BOARD

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO MEMBERS AND EXECUTIVE MANAGER

To: Joseph R. Anderson, Attorney, Okaloosa County Gas District Board, Fort Walton Beach

Prepared by: Jeff Trammel

SUMMARY:

The Okaloosa County Gas District Governing Board exercises a number of powers of a regulatory nature, including the power of eminent domain and execution and delivery of mortgages, deeds of trust, and other instruments of security. The board therefore does not fall within the advisory board exclusion of s. 112.312(7)(b), F. S. (1974 Supp.); rather, members of the board are deemed to be public officers subject to financial disclosure. The district's executive manager also is deemed to be a public officer pursuant to s. 112.312(7)(j), supra, inasmuch as he exercises purchasing-agent powers. The legal counsel to the district is not an employee of that agency, however. Rather, he acts as an independent contractor and, as such, is not subject to the provisions of the Code of Ethics for Public Officers and Employees. Reference is made to CEO 74-15, question 5.

QUESTIONS:

1. Are the members of the Okaloosa County Gas District Board and the district's executive manager public officers within the meaning of that term as found in part III, Ch. 112, F. S. (1974 Supp.), and therefore subject to financial disclosure requirements?

2. Am I, as counsel to the Okaloosa County Gas District, a public officer within the meaning of that term as found in part III, Ch. 112, supra, and thus subject to financial disclosure requirements?

Question 1 is answered in the affirmative.

The Okaloosa County Gas District was established by special act of the Florida Legislature in Ch. 29334, 1953, Laws of Florida. The district, through its governing board, was endowed with a number of delegations of authority, including the power of eminent domain and execution and delivery of mortgages, deeds of trust, and other instruments of security.

In part III, Ch. 112, F. S. (1974 Supp.), the term "public officer" is defined to include:

Members of boards, commissions, authorities, special taxing districts, and the head of each state agency, however selected but excluding advisory board members. [Section 112.312(7)(b), supra.]

In that the gas district board is clearly nonadvisory in nature, its members are public officers within the scope of the above subsection. It follows that they are subject to the financial disclosure requirements of the Florida Code of Ethics, part III, Ch. 112, supra.

The executive manager of the district, Mr. Earl Talbot, is authorized to sign purchase orders for the gas district. The definition of "public officer" also includes "[p]urchasing agents for any agency or persons having the power normally conferred to purchasing agents by whatever title." Section 112.312(7)(j), supra. (Emphasis supplied.) The duties of a purchasing agent generally include contacting vendors, distributing bid invitations, preparing purchase orders, and various other functions. We are of the opinion that Mr. Talbot is a public officer within the purview of this paragraph and thus is subject to the Code of Ethics, including financial disclosure provisions. Although your inquiry did not specifically inquire as to the status of the assistant executive manager, it appears that he also may have authority to sign purchase orders and thus would also be subject to financial disclosure.

Question 2 is answered in the negative.

As attorney for the gas district, you are not an employee of the district; rather, you act as an independent contractor. This commission has recognized attorneys retained by agencies on this basis as outside the scope of the Code of Ethics. See CEO 74-15, question 5, a copy of which is enclosed. Your question accordingly is answered in the negative.