CEO 76-70 -- April 16, 1976

JUDICIAL COUNCIL OF FLORIDA

APPLICABILITY OF THE CODE OF ETHICS TO MEMBERS

To: (Name withheld at the person's request.)

Prepared by: Gene Rhodes

SUMMARY:

The Code of Ethics for Public Officers and Employees requires that each state officer annually file a statement of financial disclosure. Fla. Stat. s. 112.3145(2)(b)(1975). The term "state officer" is defined to include appointed members to all boards with statewide jurisdiction other than advisory bodies. "Advisory body" is further defined by the Code to mean any board whose total 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 in no way include the final determination or adjudication of personal or property rights other than those relating to its internal operations. Fla. Stat. s. 112.312(2)(1975). The Judicial Council of Florida is solely advisory in nature, operating on a current budget of $30,000 and a 1976-1977 budget of $25,000. The Council advises the Florida Legislature and the Supreme Court, the former having a budget in excess of $14,000,000, the latter a budget of $2,400,000. The Council's budget clearly is less than 1 percent of that of the Legislature and constitutes 1.25 percent of the Supreme Court's budget. Next year the Council's budget will comprise only 1.03 percent of that of the Supreme Court, which will increase to $2,418,000.

In our view, the legislative purpose in setting financial limitations for advisory bodies was to require the members of an otherwise advisory body to file disclosure when that body is spending significant sums of money on its internal operations. This clearly is not the case with the Judicial Council, and we cannot see the potential for misuse of public funds which the financial limitations were meant to guard against. Accordingly, we deem the Judicial Council of Florida to be an advisory body for purposes of the Code of Ethics and its members therefore are not subject to financial disclosure. The standards of conduct provisions of the code, however, apply to all public officers and employees, including members of advisory bodies. Members of the Judicial Council therefore are subject to these provisions as found in Florida Statute s. 112.313(1975).

QUESTIONS:

1. Am I, as a Justice of the Supreme Court serving as ex officio chairman of the Judicial Council of Florida, and are the other members of the council required to file statements of financial disclosure?

2. Am I and the other members of the Judicial Council of Florida subject to the standards of conduct provisions of the Code of Ethics for Public Officers and Employees?

Question 1 is answered in the negative.

Your letter of inquiry advises us that you were recently reappointed by the Governor as the justice of the Supreme Court who will serve as chairman of the Judicial Council of Florida. With the exception of the Attorney General, the other members of the council are also appointed by the Governor.

The Code of Ethics for Public Officers and Employees requires that each "state officer" annually file a statement of financial interests. Fla. Stat. s. 112.3145(2)(b)(1975). The term "state officer" is defined by the Code of Ethics to include

[a]n appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body. [Emphasis supplied; Fla. Stat. s. 112.3145(1)(c)2.(1975).]

The Code of Ethics defines the term "advisory body" as follows:

"Advisory body" means 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).]

The code additionally excludes from the definition of advisory body any governmental body with land planning, zoning, or natural resources responsibilities. Fla. Stat. s. 112.3145(1)(a)2.(1975).

A public body, therefore, must meet three requirements before it is deemed to be an advisory body for purposes of the Code of Ethics. First the body must be other than one with land planning, zoning, or natural resources responsibilities. The Judicial Council has no responsibilities in the above areas and therefore meets this requirement.

Secondly, the public body's total budget, appropriations, or authorized expenditures must constitute less than 1 percent of the budget of each agency it serves or less than $100,000, whichever is less. The Judicial Council's budget for the current year is approximately $30,000; therefore, we need only concern ourselves with whether the council's budget is less than 1 percent of each agency it serves. The council serves The Florida Legislature and the courts in that it advises these agencies. See Fla. Stat. s. 43.15(1)(d)(1975). The council's $30,000 budget clearly is less than 1 percent of the Florida Legislature's budget, which is in excess of $14,000,000.

The council's budget must also constitute less than 1 percent of the court's budget. You have informed our staff that the council serves the court system as a whole rather than serving each court on an individual basis. The director of the Judicial Council has assured us that the council does not advise the courts individually but rather reports to the Supreme Court which adopts rules for the practice and procedure, and administrative supervision of all courts. See Fla. Const. Art. V, s. 2(a)(1968). As a practical matter, we accept the view that this Judicial Council does not advise each state court individually but rather advises the Supreme Court whose budget for the current year is $2,400,000. The Council's $30,000 budget accordingly represents 1.25 percent of the Supreme Court's budget. This, of course, is more than 1 percent; however, when comparing the budgets, we must take a number of factors into consideration.

First, we understand from your letter of inquiry that the Judicial Council's budget for next year will decrease to $25,000, while the Supreme Court's budget will increase to $2,418,000. Therefore, the council's budget will represent only 1.03 percent of the Supreme Court's budget for the coming fiscal year. We find it significant that this figure represents only three-one-hundredths of a percent over the financial limitations within the definition of an advisory body. In our view the legislative purpose in setting financial limitations for advisory bodies was to require the members of an otherwise advisory body to file when that body is spending significant sums of money on its internal operations. Obviously the Judicial Council does not receive a large amount of money which may be spent at their discretion on internal operations. Where a $25,000 budget is disbursed to pay staff's salary, travel expenses, and the cost of preparing and distributing the annual report to the Governor, we cannot see the potential for misuse of public funds which the financial limitations were meant to help protect against. Accordingly, we find that no legitimate purpose would be served by excluding the Judicial Council from the status of an advisory body, and we decline to do so.

The Judicial Council is also required to file an annual report with the Governor, advising him of the Council's proceedings and recommendations and the results thereof. See Fla. Stat. s. 43.15(1)(d)(1975). Strictly speaking, this function constitutes "serving" the Governor. However, we also believe that the intent behind s. 112.312(1) was to require comparison between the budget of the advisory body and the budget of those agencies which are principally served rather than with the budgets of agencies only incidentally served by the advisory body. We believe that the responsibility to file an annual report with the Governor constitutes incidental service, and we therefore find it unnecessary to compare the Judicial Council's budget with that of the Governor's.

Finally, an advisory body's powers, jurisdiction, and authority must be solely advisory, which means in part that those powers, jurisdiction, and authority exercised by the body do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to internal operations. It is clear from the statute which established the Judicial Council [Fla. Stat. s. 43.15(1975)] that the Council's powers, jurisdiction, and authority are solely advisory and in no way determine personal or property rights. Therefore this final requirement of an advisory body is satisfied and the Judicial Council of Florida accordingly is deemed to be an advisory body for purposes of the Code of Ethics for Public Officers and Employees.

Consequently, as members of an advisory body, the members of the Judicial Council are not required to file statements of financial disclosure.

Question 2 is answered in the affirmative.

Public officers are expressly designated as subject to the standards of conduct enumerated in Fla. Stat. s. 112.313(1975). The term "public officer" is defined to 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).]

Accordingly, the members of the Judicial Council of Florida are subject to the standards of conduct provisions of the Code of Ethics as contained in

s. 112.313.