CEO 76-25 -- February 13, 1976

ADVISORY BOARDS

APPLICABILITY OF THE CODE OF ETHICS FOR PUBLIC OFFICERS AND EMPLOYEES

To: W. W. Caldwell, Jr., City Attorney, Fort Lauderdale

Prepared by: Gene Rhodes

SUMMARY:

The standards of conduct provisions of the Code of Ethics for Public Officers and Employees, as contained in Fla. Stat. s. 112.313(1975), apply to all public officers and employees, including members of advisory bodies. Pursuant to Fla. Stat. s. 112.312(1)(1975), members of advisory bodies are exempt from financial disclosure requirements, however. An advisory body is defined to be one whose total funding is less than 1 percent of the budget of each agency it serves, or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory. Where the enabling legislation of a board delegates to it any duties of a regulatory or policymaking nature, it is not deemed to be advisory. Members of such boards therefore are required to file statements of financial disclosure.

QUESTIONS:

1. Do the Standards of Conduct for Public Officers and Employees, Fla. Stat. s. 112.313(1975), apply to members of advisory bodies?

2. Are members of the subject municipality's animal control committee, aviation industrial board, beach advisory board, charter revision board, citizen's coordinating committee, committee on noise control, community services and facilities board, insurance advisory board, library advisory board, license review board, marine advisory board, parks and recreation board, sign advisory board, sister city advisory board, and transportation advisory board "local officers" within the meaning of that term as found in Fla. Stat. s. 112.3145(1)(a)(1975), and thus subject to financial disclosure requirements?

3. Are members of the administrative board of the city police and firefighters retirement system, the administrative board of the city general employees retirement system, the building contractors examining board, the engineering contractors examining board, the plumbing contractors examining board, the electrical contractors examining board, the mechanical contractors examining board, the liquefied petroleum gas installation contractors examining board, the examiners' mediation board, the cemeteries board of trustees, the civil service board, the historic preservation board, the planning and zoning board, the record retention committee, the unsafe structures and housing appeals board, and the urban renewal agency "local officers" within the meaning of that term as found in Fla. Stat. s. 112.3145(1)(a)(1975), and thus subject to financial disclosure requirements?

Question 1 is answered in the affirmative.

The Code of Ethics for Public Officers and Employees states in relevant part:

DEFINITION. -- As used in this section, unless the context otherwise requires, the term "public officer" shall include any person elected or appointed to hold office in any agency including any person serving on an advisory body. [Fla. Stat. s. 112.313(1)(1975).]

The above-quoted provision is the first subsection in that section of the code setting out the standards of conduct. Clearly, the standards of conduct were intended by the Legislature to apply to all public officers and employees, including members of advisory bodies.

Question 2 is answered in the negative.

The Code of Ethics for Public Officers and Employees defines the term "local officer" to include:

Any appointed member of a board, commission, authority, community college district board of trustees, or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land planning, zoning or natural resources responsibilities shall not be considered an advisory body. [Emphasis supplied; Fla. Stat. s. 112.3145(1)(a)2.(1975).]

The code further defines an "advisory body" as

. . . any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties or obligations, other than those relating to its internal operations. [Fla. Stat. s. 112.312(1)(1975).]

You provided us with information indicating that each of the above-mentioned agencies has a total budget of less than 1 percent of the budget of the agency it serves or less than $100,000, thus meeting the first requirement to qualify as an advisory body.

We have previously found that an agency is solely advisory where it renders advice to an officer or agency, which officer or agency then has complete discretion to accept or reject the advice or recommendations presented by the advisory body. See CEO 74-4.

It is evident from the information you submitted on the duties and functions of these boards that each has only the authority to make recommendations to an officer or agency of the city and, as such, is solely advisory in nature, thereby meeting the second requirement to qualify as an advisory body. Therefore, the board members are not "local officers" within the meaning of s. 112.3145(1)(a)2., and, accordingly, are not subject to financial disclosure requirements.

We take this view after careful examination of the duties of the above boards. This opinion carries no weight as to other boards similarly named whose duties may in fact be other than advisory. Decisions as to the status of all boards must be made on an ad hoc basis.

Question 3 is answered in the affirmative.

The enabling legislation of each of these boards delegates to them duties and functions which clearly would not be delegated to an advisory body.

The duties of the administrative board of the city police and firefighters retirement system include construing the provisions of the retirement system, determining questions of eligibility, and certifying the amount of retirement allowances. Fort Lauderdale Code s. 31-18(k). The administrative board of the city general employees retirement system has comparable duties. Fort Lauderdale Code s. 31- 8(k).

The aforementioned examining boards have the power to determine the qualifications of applicants for various types of contractors' or superintendents' licenses and certificates of competency and to suspend or revoke such licenses or certificates of occupancy. Fort Lauderdale Code s. 48-7(h).

The examiners' mediation board is empowered to decide questions which pertain to more than one of the aforementioned examining boards, including, but not limited to, questions of jurisdiction between the boards. These rulings are final. Fort Lauderdale Code s. 48-8(h).

The cemeteries board of trustees is responsible for administering the operations of the municipal cemeteries. Fort Lauderdale Code s. 13-6.1.

The civil service board acts as the final appellate body for city employees who have been discharged, dismissed, or demoted. Fort Lauderdale Code s. 77(d)(1).

The historic preservation board, among other responsibilities, issues certificates of appropriateness which are a prerequisite to the issuance of a permit where existing buildings are to be materially changed in their exterior appearance, demolished, or moved or where new buildings are to be constructed. Fort Lauderdale Code ss. 47-23.13.2, 47-23.13.8(b).

The records retention committee must approve the destruction of any public records. Fort Lauderdale Code s. 311.1.

The unsafe structures and housing appeals board has the power to sustain, modify or withdraw a municipal housing code violations notice. Fort Lauderdale Code s. 48-43(e).

The urban renewal agency is authorized to transact business. Fort Lauderdale Urban Renewal Code s. 16(b).

The aforementioned duties are clearly not advisory, and, thus, none of these agencies meet the criteria set forth in the definitions of an advisory body.

The planning and zoning board is not an advisory body pursuant to Fla. Stat. s. 112.3145(1)(a)2.(1975), quoted in question 2 above.

This being the case, the members of the above-mentioned boards are deemed to be local officers subject to financial disclosure.