CEO 77-128 -- August 24, 1977
APPLICABILITY OF FULL AND PUBLIC FINANCIAL DISCLOSURE PROVISIONS OF s. 8, ART. II, STATE CONST.
To: Kenneth D. Kienth, Orange County Comptroller, Orlando
Prepared by: Phil Claypool
SUMMARY:
A county comptroller, whose office was created by Ch. 72-461, Laws of Florida, is not deemed to constitute a constitutional officer for purposes of the filing of full and public disclosure mandated by the Sunshine Amendment to the Florida Constitution, s. 8, Art. II. In CEO 77-91 it was determined that, pending judicial clarification, those officers of a charter county who perform the duties of those county officers specified in s. 1(d) and (e), Art. VIII of the Constitution should be considered as constitutional officers under the Sunshine Amendment. Basic to the rationale of that opinion is that certain charter county offices merely have replaced the offices which would have existed but for the county charter, although those charter county officers perform the identical responsibilities of noncharter county officers. Whereas the subject county comptroller performs some responsibilities formerly discharged by the clerk of the circuit court, his position does not replace that of the clerk but, rather, is a distinct, statutorily created position. The comptroller is subject, however, to the statutory financial disclosure law by virtue of his being an elected officer of a political subdivision.
QUESTION:
Am I, the County Comptroller of Orange County, an elected constitutional officer who is therefore required to file full and public disclosure pursuant to s. 8(a), Art. II, State Const.?
Your question is answered in the negative.
In your letter of inquiry you advise that you have been elected to the office of County Comptroller of Orange County, an office created by Ch. 72-461, Laws of Florida. The duties of your position, as set forth in that chapter, include serving as ex officio clerk of the board of county commissioners and recorder, auditor, and custodian of all county funds and of all official records of the board of county commissioners. Section 2, Ch. 72-461. These responsibilities were formerly discharged by the clerk of the circuit court. Chapter 72-461 thus had the effect of transferring some of the duties of the clerk to the newly created office of comptroller. Thus, the duties of the clerk presently include keeping the progress dockets for each court in the county; issuing or attesting all appropriate process, notices, subpoenas, and writs; and as to all litigation, proceedings, and matters within their respective jurisdictions, maintaining the records and files of each of said courts and performing all of the duties formerly performed by their own clerks. Section 1, Ch. 72-461.
Section 1(d), Art. VIII, State Const., provides in part:
When not otherwise provided by county charter or special law approved by vote of the electors, the clerk of the circuit court shall be ex officio clerk of the board of county commissioners, auditor, recorder and custodian of all county funds.
In addition, s. 16, Art. V, State Const. provides:
Clerks of the circuit courts. -- There shall be in each county a clerk of the circuit court who shall be selected pursuant to the provisions of Article VIII section 1. Notwithstanding any other provision of the constitution, the duties of the clerk of the circuit court may be divided by special or general law between two officers, one serving as clerk of court and one serving as ex officio clerk of the board of county commissioners, auditor, recorder, and custodian of all county funds. There may be a clerk of the county court if authorized by general or special law.
In CEO 77-91, we advised that, pending judicial clarification, those officers of a charter county who perform the duties of the county officers specified in s. 1(d) and (e), Art. VIII, State Const., should be considered as constitutional officers under the Sunshine Amendment. Basic to the rationale of that opinion is that certain charter county offices merely have replaced the offices which would have existed but for the county charter, although those charter county officers perform the identical responsibilities of noncharter county officers.
We are of the opinion that the office of county comptroller stands in a different position. It is clear that your office is not created by the Constitution, but by legislative act. See AGO 072- 424. In addition, it is clear that your office does not replace the office of clerk of the circuit court, but merely assumes some of the duties of the clerk.
Accordingly, until judicially clarified to the contrary, we are of the opinion that the office of County Comptroller of Orange County is not a constitutional office and therefore that you are not required to file full and public financial disclosure pursuant to s. 8(a), Art. II, State Const.
Please note, however, that since you are elected to office in a political subdivision of the state, you are required to file statutory financial disclosure as a "local officer" pursuant to the provisions of s. 112.3145, F. S. 1975.