CEO 77-123 -- July 21, 1977

BOARDS WITHIN DEPARTMENT OF STATE

APPLICABILITY OF FINANCIAL DISCLOSURE TO MEMBERS

To: Bruce A. Smathers, Secretary of State, Tallahassee

Prepared by: Bonnie Johnson

SUMMARY:

Members of the Historic Boca Raton Preservation Board of Commissioners, the Historic Key West Preservation Board of Trustees, the Historic Pensacola Preservation Board of Trustees, the Historic Tallahassee Preservation Board of Trustees, the Historic Tampa-Hillsborough County Preservation Board of Trustees, the Historic Preservation Project Review Council, the Board of Trustees of the John and Mable Ringling Museum of Art, the Board of Trustees of the Asolo State Theater, the Stephen Foster Memorial Board of Trustees, and the Florida Elections Commission are subject to the statutory financial disclosure provisions contained in s. 112.3145, F. S. 1975, as none of the above boards meet the definition of "advisory body" contained in s. 112.312(1).

QUESTION:

Are members of the Historic Boca Raton Preservation Board of Commissioners, the Historic Key West Preservation Board of Trustees, the Historic Pensacola Preservation Board of Trustees, the Historic Tallahassee Preservation Board of Trustees, the Historic Tampa-Hillsborough County Preservation Board of Trustees, the Historic Preservation Project Review Council, the Board of Trustees of the John and Mable Ringling Museum of Art, the Board of Trustees of the Asolo State Theater, the Stephen Foster Memorial Board of Trustees, and the Florida Elections Commission subject to the annual filing of financial disclosure?

Your question is answered in the affirmative in all ten instances.

The Code of Ethics for Public Officers and Employees requires that each state or local officer file a statement of financial interests annually. Section 112.3145(2)(b), F. S. 1975. The term "state officer" is defined to include

[a]n appointed member of each board, commission, authority, or council having statewide jurisdiction, excluding a member of an advisory body. [Section 112.3145(1)(c)2., F. S. 1975.]

A "local officer" is defined by the code to include

[a]ny 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. [Section 112.3145(1)(a)2., F. S. 1975.]

Accordingly, any appointed member to a governmental board is subject to financial disclosure unless that board constitutes an advisory body for purposes of the Code of Ethics. The term "advisory body" is defined in s. 112.312(1), F. S. (1976 Supp.) 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.

Of the ten boards about which you inquire, three appear to have statewide jurisdiction: The Florida Elections Commission, the Board of Trustees of the Asolo State Theater, and the Historic Preservation Project Review Council. Moreover, the powers of each are more than solely advisory.

The Florida Elections Commission is charged with investigating and hearing complaints of violation of campaign financing laws as contained in Ch. 106, F. S. Pursuant to this duty, the commission has the power to issue subpoenas to compel the attendance of witnesses and the production of documentary evidence and to hold hearings to determine whether probable cause exists to believe that a violation of Ch. 106 has occurred. Section 106.26.

The Board of Trustees of the Asolo State Theater is charged, in s. 241.68, F. S. 1975, with administration of the state theater, including the establishment of programs throughout the state and the determination of admission fees to productions.

The Historic Preservation Project Review Council is charged with the responsibility "to evaluate all proposals for capital outlay involving projects requiring financial assistance from the state, relating to the preservation, restoration, reconstruction, or acquisition of any historical site," and "[n]o such capital outlay projects [are] eligible for state financial assistance until such time as a report and recommendation of the council has been filed . . . ." Section 267.0615, F. S. 1975.

In our view, the duties of the above three boards are more than "solely advisory." Accordingly, their members constitute state officers required to file annually with the Department of State statements of financial interests.

The jurisdiction of the remaining seven boards is less than statewide, each being restricted to a political subdivision or subdivisions of the state. Their powers, too, are more than solely advisory.

All five historic preservation boards, for example, are empowered to contract; to sue; to acquire, hold, lease, and dispose of real and personal property; to condemn such property for public use; to employ and dismiss personnel at pleasure and to prescribe their powers, duties, and compensation; to engage in business activities; and to borrow money, among other activities. Sections 266.106, 266.115, 266.206, 266.306, and 266.406, F. S. 1975.

The Board of Trustees of the Ringling Museum of Art has

complete jurisdiction over the management of the museum, and is invested with full power and authority to appoint a director, and other employees, and to remove the same as in their judgment may be best; fix their compensation, provide for the proper keeping of accounts and records; budgeting of funds; to enter into contracts; to secure public liability insurance; and to do and perform every other matter or thing requisite to the proper management, maintenance, support and control of the John and Mable Ringling Museum of Art at the highest efficiency economically possible taking into consideration the purposes of the establishment. [Section 265.26(4), F. S. 1975.]

Finally, the Stephen Foster Memorial Board of Trustees is empowered to receive donations and hold them in trust, to borrow money, and to issue mortgage revenue certificates or debentures therefor and sell same. Section 265.14, F. S. 1975. Section 265.15 further authorizes the board to build, erect, and construct the memorial in accordance with the board's own plans and specifications; to maintain and improve the memorial and its grounds; to employ caretakers and other personnel; to charge fees and admissions; to operate land and water conveyances at the memorial; and to operate facilities for the sale of souvenirs.

As the above-described powers and duties of the seven local boards are not confined to the solely advisory, the boards may not be deemed advisory bodies for purposes of the Code of Ethics. Therefore, members of these seven boards are local officers, required to file financial disclosure annually with the clerk of the circuit court of the county within which each member is principally employed or is a resident.