Prepared by: Bonnie Johnson

SUMMARY:

A drainage district established pursuant to Ch. 298, F. S., constitutes an "agency" for purposes of the Code of Ethics, and elected members to the Board of Supervisors of such district are deemed to be "local officers" subject to disclosure within the definition of Fla. Stat. s. 112.3145(1)(a)1. The conflicting employment provision of the code [s. 112.313(7)] does not prohibit an owner of land within the district from holding office as supervisor, inasmuch as the ownership of land does not constitute employment. Where a member of the board of supervisors is an employee of a corporate landowner within the district, no conflict exists pursuant to the specific exception provided for special tax districts within s. 112.313(7).

Persons seeking election to the board of supervisors do not formally qualify as candidates and therefore are not deemed to be required to file disclosure previous to seeking such office. Duly elected supervisors, however, must file statements of disclosure annually, and persons appointed to fill a vacancy on the board of supervisors must file disclosure within 30 days of the date of appointment. Drainage district supervisors are subject to the standards of conduct provisions of the Code of Ethics and, accordingly, must file a memorandum of voting conflict pursuant to s. 112.3143 where they choose to vote on a matter in which they have a conflict.

QUESTIONS:

1. Is the ____ Drainage District, established pursuant to the provisions of Ch. 298, F. S., an "agency" for purposes of applicability of the Code of Ethics for Public Officers and Employees as contained in part III, Ch. 112, F. S.?

2. Are members of the board of supervisors of the subject drainage district "local officers" within the meaning of Fla. Stat. s. 112.3145(1975)?

3. Is an owner of a substantial amount of land within the subject drainage district prohibited from holding office as a supervisor of the district pursuant to the prohibition against conflicting employment contained in Fla. Stat. s. 112.313(7)(1975)?

4. Is s. 112.313(7)(1975) violated where a member of the board of supervisors of the subject drainage district is an agent or employee of a landowner within the district where such landowner is a corporation or an agent or employee of a wholly owned subsidiary of such corporate landowner?

5. Must a person seeking election to the board of supervisors of the subject drainage district file a statement of financial disclosure prior to his election pursuant to the provisions of Fla. Stat. s. 112.3145(2)(a)(1975)?

6. Is a duly elected supervisor of the subject drainage district required to file a statement of financial interests on or before July 15th of each year for the previous year?

7. Is a supervisor who is appointed to fill a vacancy on the board of the subject drainage district required to file a statement of financial interests within 30 days of the date of such appointment?

8. Must a supervisor of the subject drainage district who votes on a matter in which he has a conflict of interest file a memorandum of voting conflict pursuant to Fla. Stat. s. 112.3143(1975)?

Question 1 is answered in the affirmative.

The term "agency" is defined by the Code of Ethics to mean:

. . . any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Fla. Stat. s. 112.312(2)(1975).]

Drainage and water management districts, established pursuant to the provisions of Ch. 298, F. S., are political subdivisions of the state within the meaning of Fla. Stat. s. 1.01 (1975) and are established "for the purpose of preserving and protecting water resources, for sanitary or agricultural purposes, or when the same may be conducive to the public health, convenience or welfare, or of public utility or benefit, by drainage, irrigation, or water management." Fla. Stat. s. 298.01(1)(1975). The subject district therefore is deemed to be an "agency" for purposes of the financial disclosure and standards of conduct provisions of the Code of Ethics as contained in part III, Ch. 112, F. S.

Question 2 is answered in the affirmative.

For purposes of the disclosure provisions of s. 112.3145, the term "local officer" is defined to include

[e]very person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for an unexpired term in such an elective office. [Fla. Stat. s. 112.3145(1)(a)1.(1975).]

Supervisors of drainage districts established under the provisions of Ch. 298 are elected to office by landholders within the district. See Fla. Stat. s. 298.11(1975). Such supervisors therefore constitute "local officers" within the meaning of s. 112.3145 and are subject to disclosure requirements of that part.

Question 3 is answered in the negative.

In reference to conflicting employment, the Code of Ethics provides in part as follows:

No public officer or employee of an agency shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he is an officer or employee, excluding those organizations and their officers who, when acting in their official capacity, enter into or negotiate a collective bargaining contract with the state or any municipality, county, or other political subdivision of the state; nor shall an officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his private interests and the performance of his public duties or that would impede the full and faithful discharge of his public duties . . . . [Fla. Stat. s. 112.313(7)(1975).]

For purposes of the standards of conduct provisions of the code, as contained in s. 112.313, 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). Provisions of s. 112.313 therefore are applicable to drainage district supervisors. Where such supervisor owns land in the district but does not hold any employment or contractual relationship with a business entity or agency regulated by the district, no violation of s. 112.313(7) exists.

Question 4 is answered in the negative.

Although the previously quoted portion of s. 112.313(7) prohibits a public officer from holding employment with a business entity subject to the regulation of or doing business with the officer's own agency, the provision goes further to stipulate that

[w]hen the agency referred to is that certain kind of special tax district created by general or special law and is limited specifically to constructing, maintaining, managing, and financing improvements in the land area over which the agency has jurisdiction, or when the agency has been organized pursuant to Chapter 298, then employment with, or entering into a contractual relationship with, such business entity by a public officer or employee of such agency shall not be prohibited by this subsection or be deemed a conflict per se. However, conduct by such officer or employee that is prohibited by, or otherwise frustrates the consent of, this section shall be deemed a conflict of interest in violation of the standards of conduct set forth by this section. [Fla. Stat. s. 112.313(7)(a)1.(1975).]

Moreover, subsection (7)(b) of this provision states:

This subsection shall not prohibit a public officer or employee from practicing in a particular profession or occupation when such practice by persons holding such public office or employment is required or permitted by law or ordinance.

Inasmuch as the subject drainage district was organized pursuant to Ch. 298 and because s. 298.11 of that chapter provides that the board of supervisors of the district be composed of owners of land within the district, no violation of s. 112.313(7) is constituted in the subject situation pursuant to the two above-quoted exceptions.

Question 5 is answered in the negative.

The subject provision of the Code of Ethics, relating to the filing of disclosure by candidates, is as follows:

A person seeking nomination or election to a state or local (elective) office shall file a statement of financial interests together with, and at the same time he files, his qualifying papers. [Fla. Stat. s. 112.3145(2)(a)(1975).]

For purposes of the Code of Ethics the word "candidate" is defined to mean

any person who has filed a statement of financial interest and qualification papers, has subscribed to the candidate's oath as required by s. 99.021, and seeks by election to become a public officer. This definition expressly excludes a committeeman regulated by chapter 103 and persons seeking any other office or position in a political party. [Fla. Stat. s. 112.312(4)(1975).]

This provision manifestly assumes that candidates must "qualify" in order to seek office. You inform us, however, that a candidate for election as drainage district supervisor is not required to file qualification papers. We think it reasonable to assume that the Legislature did not intend for persons to file a disclosure statement prior to such an election. However, any person elected to the board is required to file CE Form 1. This point leads directly into your next question.

Question 6 is answered in the affirmative.

In question 2 above it was established that drainage district supervisors constitute local officers for purposes of disclosure. The Code of Ethics provides in relevant part:

Each state or local officer and each specified employee shall file a statement of financial interests no later than 12 o'clock noon of July 15 of each year, including the July 15th following the last year (he) is in office. [Fla. Stat. s. 112.3145(2)(b)(1975).]

The "disclosure period," as that phrase is used in provisions of s. 112.3145, is defined to mean

. . . the taxable year for the person or business entity, whether based on a calendar or fiscal year, immediately preceding the date on which, or the last day of the period during which, the financial disclosure statement required by this part is required to be filed. [Fla. Stat. s. 112.312(8)(1975).]

Supervisors of the subject drainage district therefore are required to file statements of financial disclosure, based on the preceding calendar or fiscal year, on or before July 15 of each year they are in office plus the year which follows the last year they held office.

Question 7 is also answered in the affirmative.

Florida Statute s. 112.3145(2)(b), quoted in part in the preceding response, goes further to provide:

Each state or local officer who is appointed and each specified employee who is employed shall file a statement of financial interests within 30 days from the date of appointment or in the case of specified employees, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, whichever comes first.

Accordingly, all appointees to public office must file statements of disclosure pursuant to s. 112.3145 within 30 days of their appointment date.

Question 8 is answered in the affirmative.

The provision of the Code of Ethics relating to voting conflicts is as follows:

VOTING CONFLICTS. -- No public officer shall be prohibited from voting in his official capacity on any matter. However, any public officer voting in his official capacity upon any measure in which he has a personal, private, or professional interest and which inures to his special private gain or the special gain of any principal by whom he is retained shall, within 15 days after the vote occurs, disclose the nature of his interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes. [Fla. Stat. s. 112.3143(1975).]

As pointed out in question 3 above, Fla. Stat. s. 112.313(1)(1975) provides that, for purposes of the standards of conduct provisions of the Code of Ethics, the term "public officer" includes "any person elected or appointed to hold office in any agency . . . ." Drainage district supervisors thus are subject to s. 112.3143, quoted above, which provides that, where a public officer exercises his right to vote on a matter in which he has a private interest that inures to his gain or that of a client, he is required to file a Memorandum of Voting Conflict (CE Form 4) with the person responsible for recording the minutes of the meeting at which the vote occurred.