CEO 76-164 -- September 13, 1976

JUDICIAL NOMINATING COMMISSION

FINANCIAL DISCLOSURE REQUIREMENTS OF MEMBERS

To: Hugh E. Reams, Member, Second District Court of Appeal Nominating Commission, St. Petersburg

Prepared by: Bonnie Johnson

SUMMARY:

As a district court of appeal nominating commission does not have statewide jurisdiction, its members are not state officers within the terms of Florida Statute s. 112.3145(1)(c)2.(1975). Rather, such members constitute local officers for purposes of financial disclosure, as appellate districts constitute political subdivisions within the meaning of s. 1.01(9). See Fla. Stat. s. 35.03(1975). As the jurisdiction of a district court of appeal extends to all counties within the district, and because district boundaries follow county lines, the level of government of a member of a district court of appeal nominating commission is deemed to be regional. For purposes of the disclosure of clients represented before agencies (CE Form 2), such member is required to list the names of all clients represented before agencies of the counties within that appellate district.

Pursuant to the mandate of Florida Statute s. 112.3145(3)(a) and (b), a public officer is required to disclose all sources of income greater than 5 percent of his gross income, and all sources of income to a business entity in excess of 10 percent of the entity's gross income, provided he holds a material interest in the business entity. Accordingly, the name of a client from whom the reporting person derived a fee constituting in excess of 10 percent of his firm's gross income and in excess of 5 percent of his gross income must be disclosed. Similarly, the name of an estate must be disclosed where the legal fee derived from representation of such estate constituted in excess of 10 percent of his law firm's gross income.

QUESTIONS:

1. Am I, as a member of a district court of appeal nominating commission, a state officer for purposes of the financial disclosure and therefore required to disclose on CE Form 2 the filing of a bank charter with a state agency?

2. Am I required to disclose on CE Form 1, the Statement of Financial Disclosure, the name of a client from whom I derived a fee which constituted in excess of 10 percent of my firm's gross income and in excess of 5 percent of my gross income?

3. Am I required to disclose on CE Form 1, the Statement of Financial Disclosure, an estate's name where the legal fee derived from representation of such estate constituted in excess of 10 percent of my law firm's gross income?

Question 1 is answered in the negative.

You advise in your letter of inquiry that you are a member of the Second District Court of Appeal Judicial Nominating Commission and are uncertain of your "level of government" for purposes of disclosure.

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

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

As the Second District Court of Appeal Judicial Nominating Commission nominates candidates only for that district, it does not have statewide jurisdiction, and its members therefore do not constitute state officers pursuant to the above definition. Accordingly, your level of government is not the state, and representations before state agencies need not be disclosed.

The term "local officer" is defined by the Code of Ethics to include:

An appointed member of each 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. . . . [Fla. Stat. s. 112.3145(1)(a)2.(1975).]

The Florida Statutes define the term "political subdivision" to include "counties, cities, towns, villages, special tax school districts, bridge districts and all other districts in this state." Fla. Stat. s. 1.01(9)(1975). The Second Appellate District is a specifically defined district in this state. See Fla. Stat. s. 35.03(1975). Members of the Second District Court of Appeal Nominating Commission consequently constitute local officers for purposes of the disclosure law.

As the jurisdiction of the Second District Court of Appeal extends to all counties within the district, and because district boundaries follow county lines, we deem your level of government to be regional insofar as it extends to all counties in the district. For purposes of disclosures on CE Form 2, you therefore are required to list the names of all clients represented before agencies of the counties within the Second Appellate District.

Question 2 is answered in the affirmative.

The Code of Ethics for Public Officers and Employees provides in part that disclosing persons report on the Statement of Financial Disclosure, CE Form 1

(a) All sources of income in excess of 5 percent of the gross income received during the disclosure period by the person in his own name or by any other person for his use or benefit, excluding public salary . . . .

(b) All sources of income to a business entity in excess of 10 percent of the gross income of a business entity in which the reporting person held a material interest and from which he received an amount which was in excess of 10 percent of his gross income during the disclosure period and which exceeds $1,500. [Fla. Stat. s. 112.3145(3)(a) and (b)(1975).]

Pursuant to the above section you are required to disclose all sources of income greater than 5 percent of your gross income, and all sources of income to a business entity in excess of 10 percent of the entity's gross income, provided you hold a material interest in the business entity [i.e., own more than 5 percent of its assets; Fla. Stat. s. 112.312(10)].

"Business entity" is defined for purposes of the Code of Ethics as

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state. [Fla. Stat. s. 112.311(3)(1975); emphasis supplied.]

Under this definition, the practice of law either alone or in partnership with others constitutes a business entity. Accordingly, a client's name must be disclosed on CE Form 1, Part D, if the fee paid to (or through) the law firm is in excess of 10 percent of the firm's gross income, assuming that income derived from your law firm constitutes in excess of 10 percent of your gross income and you own over 5 percent of your firm's assets.

Should the fee paid by the client additionally represent in excess of 5 percent of your personal gross income, that client's name must also be disclosed on Part C of the Statement of Financial Disclosure entitled "Primary Sources of Income."

Question 3 is answered in the affirmative.

As explained in question 2 above, Fla. Stat. s. 112.3145(3)(b)(1975) requires the disclosure of all sources of income in excess of 10 percent of the gross income of a business entity in which the reporting person holds a material interest and from which business entity he derived in excess of 10 percent of his income during the disclosure period. The name of the subject client therefore must be disclosed in Part D of your Statement of Financial Disclosure, CE Form 1.