CEO 77-7 -- February 1, 1977

STATEWIDE HEALTH COORDINATING COUNCIL

APPLICABILITY OF CODE OF ETHICS TO MEMBERS

To: J. N. Conger, Department of Health and Rehabilitative Services, Tallahassee

Prepared by:Bonnie Johnson

SUMMARY:

The Code of Ethics requires that each state or local officer and each specified employee annually file a statement of financial interests. Section 112.3145(2)(b), F. S. 1975. The term "state officer" is defined by s. 112.3145(1)(c)2. to include an appointed member to any board other than an advisory body. An "advisory body," in turn, is defined in part as one which is solely advisory. As the Statewide Health Coordinating Council is empowered either to approve or disapprove state plans and applications pursuant to the National Health Planning and Resources Development Act of 1974, which decisions may be overruled only by the Secretary of the U.S. Department of Health, Education, and Welfare, it is not deemed to be advisory for purposes of the Code of Ethics. Nor is the council's authority to approve medical facilities plans deemed to be of an advisory nature. Accordingly, members of the Statewide Health Coordinating Council constitute state officers subject to the annual filing of financial disclosure. Pursuant to s. 112.313(1), they also constitute "public officers" subject to the standards of conduct provisions of the Code of Ethics.

QUESTIONS:

1. Are members of the Statewide Health Coordinating Council "state officers" subject to the disclosure provisions of s. 112.3145, F. S. 1975?

2. Are members of the Statewide Health Coordinating Council "public officers" for purposes of the standards of conduct and voting conflict of interest provisions of the Code of Ethics?

Question 1 is answered in the affirmative.

You advise in your original letter of inquiry and in subsequent correspondence dated December 28, 1976, that the Statewide Health Coordinating Council (SHCC) was created pursuant to the National Health Planning and Resources Development Act of 1974 (NHPRDA), s. 1524(a) of which is as follows:

A State health planning and development agency designated under Section 1521 shall be advised by a Statewide Health Coordinating Council (hereinafter in this section referred to as the "SHCC") which (1) is organized in the manner described by subsection (b), and (2) performs the functions listed in subsection (c).

Pursuant to the above-referenced s. 1521 and by letter dated September 29, 1975, the Governor designated the Department of Health and Rehabilitative Services (DHRS) to serve as the state health planning and development agency (SHPDA) to be advised by the federally designated SHCC. The Florida SHCC was formally established by Executive Order of the Governor, Number 76-20, further providing that the Governor shall appoint members to such SHCC and that the council would advise the Governor and the Secretary of DHRS.

The Code of Ethics for Public Officers and Employees requires that each state or local officer and each specified employee annually file a statement of financial interests. Section 112.3145(2)(b), F. S. 1975. Section 112.3145(4) further requires that the above- specified officials file a quarterly report of clients represented before agencies at their level of government. 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.]

The Code further defines an "advisory body" to mean

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. [Section 112.312(1), F. S. (1976 Supp.).]

Accordingly, members of the SHCC constitute state officers subject to disclosure unless that body may be deemed advisory pursuant to the above definition.

As stated in a previous paragraph, the SHCC is charged by the NHPRDA and by Executive Order of the Governor with the responsibility to advise both the Governor and the Secretary of DHRS. Section 1524(c) of the NHPRDA further provides that the SHCC shall perform the following functions:

(1) Review annually and coordinate the HSP [health systems plan] and AIP [annual implementation plan] of each health systems agency within the State and report to the Secretary [of the U.S. Department of Health, Education, and Welfare], for purposes of his review under section 1535(c), its comments on such HSP and AIP.

(2)(A) Prepare and review and revise as necessary (but at least annually) a State health plan which shall be made up of the HSP's of the health systems agencies within the State. Such plan may, as found necessary by the SHCC, contain revisions of such HSP's to achieve their appropriate coordination or to deal more effectively with statewide health needs. Each health systems agency which participates in the SHCC shall make available to the SHCC its HSP for each year for integration into the State health plan and shall, as required by the SHCC, revise its HSP to achieve appropriate coordination with the HSP's of the other agencies which participate in the SHCC or to deal more effectively with statewide health needs.

(B) In the preparation and revision of the State health plan, the SHCC shall review and consider the preliminary State health plan submitted by the State agency under section 1523(a)(2), and shall conduct a public hearing on the plan as proposed and shall give interested persons an opportunity to submit their views orally and in writing. Not less than thirty days prior to any such hearing, the SHCC shall publish in at least two newspapers of general circulation in the State a notice of its consideration of the proposed plan, the time and place of the hearing, the place at which interested persons may consult the plan in advance of the hearing, and the place and period during which to direct written comment to the SHCC on the plan.

(3) Review annually the budget of each such health systems agency and report to the Secretary, for purposes of his review under section 1535(a), its comments on such budget.

(4) Review applications submitted by such health systems agencies for grants under sections 1516 and 1640 and report to the Secretary its comments on such applications.

(5) Advise the State Agency of the State generally on the performance of its functions.

(6) Review annually and approve or disapprove any State plan and any application (and any revision of a State plan or application) submitted to the Secretary as a condition to the receipt of any funds under allotments made to States under this Act, the Community Mental Health Centers Act, or the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970. Notwithstanding any other provision of this Act or any other Act referred to in the preceding sentence, the Secretary shall allow a SHCC sixty days to make the review required by such sentence. If a SHCC disapproves such a State plan or application, the Secretary may not make Federal funds available under such State plan or application until he has made, upon request of the Governor of the State which submitted such plan or application or another agency of such State, a review of the SHCC decision. If after such review the Secretary decides to make such funds available, the decision by the Secretary to make such funds available shall be submitted to the SHCC and shall contain a detailed statement of the reasons for the decision.

In our view, these responsibilities are substantial and cannot be considered solely advisory pursuant to the definition contained in s. 112.312(1) quoted above. We have been advised by your staff that programs which are annually reviewed and approved or disapproved by the SHCC involve approximately $22 million. Rather than advising another person or agency as to the approval or disapproval of state plans and applications, the SHCC itself makes such decisions. Should a plan or application be disapproved by the SHCC, the Secretary of HEW may not make federal funds available for that plan or application unless, upon petition of the Governor, the secretary reviews and reverses the SHCC decision, in which case he is further required to detail his reasons for such reversal to the SHCC. A body which is empowered to make decisions of this magnitude, which decisions may be reversed or superseded only by positive action of another person or body, does more than counsel and therefore is not solely advisory. We would further point out that, under the NHPRDA, s. 1603(a), in order for a medical facilities plan to be approved by the Secretary of HEW, such plan must "be approved by the SHCC as consistent with the State health plan developed pursuant to section 1524(c)(2)," (quoted above). This function is not advisory in nature.

Accordingly, we find that members of the SHCC constitute "state officers" subject to the disclosure requirements of s. 112.3145, F. S. 1975.

Question 2 is answered in the affirmative.

Section 112.313(1), F. S. 1975, defines the term "public officer" as follows:

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.

Accordingly, members of the SHCC constitute "public officers" subject to the standards of conduct provisions as contained in s. 112.313 and to the voting conflict of interest provision, s. 112.3143.