CEO 79-43 -- July 19, 1979

TOWN LANDMARKS PRESERVATION COMMISSION

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO MEMBERS

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

For purposes of the annual filing of financial disclosure under s. 112.3145(2)(b), F. S. 1977, the term "local officer" is defined to include an appointed member of any board other that an advisory body; it is further provided that a board with land-planning responsibilities may not be deemed an advisory body. Section 112.3145(1)(a)2. The term "advisory body" is defined further in s. 112.312(1) to include one whose powers, jurisdiction, and authority are solely advisory. A town landmarks preservation commission whose authority includes that of issuing certificates of appropriateness prior to the issuance of building permits is not deemed to be solely advisory inasmuch as the town council can reverse or modify such decision only by positive action. Additionally, the commission's duties are in the area of land planning. Accordingly, commission members are "local officers" subject to the filing of financial disclosure annually.

QUESTION:

Are the members of the Town of Palm Beach Landmarks Preservation Commission "local officers" subject to the requirement of filing financial disclosure annually?

Your question is answered in the affirmative.

The Code of Ethics for Public Officers and Employees provides that each "local officer" shall file a statement of financial interests annually. Section 112.3145(2)(b), F. S. 1977. The term "local officer" is defined to include:

Any 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. 1977.]

The term "advisory body" is defined as

. . . 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. 1977.]

In your letter of inquiry you advise that the Town of Palm Beach recently has enacted an ordinance designed to protect landmarks and historic sites. The ordinance creates a town landmarks preservation commission, consisting of seven members appointed by the town council. Generally, the commission exercises power in three ways. First, the commission plays a role in the designation of an area of the town as an historic district; if the commission finds, after a public hearing, that a given area should be designated as an historic district, the town council may ratify or refuse to ratify such designation. Similarly, the commission may designate property as a landmark or as a landmark site following a public hearing, which determination is effective upon ratification by the town council. Thirdly, the commission is authorized to issue certificates of appropriateness following a public hearing. The ordinance provides that no landmark and no building on a landmark site or within an historic district may be erected, altered, restored, moved, or demolished until after an application for a certificate of appropriateness as to exterior architectural features has been approved by the commission, and no building permit can be issued by the town building official which would affect one of these buildings or sites without a certificate of appropriateness. Sections 4 and 7, Ordinance No. 1-79, Town of Palm Beach.

In our opinion, the commission's authority to issue certificates of appropriateness, in particular, indicates that its powers are not "solely advisory." The fact that a decision of the commission may be appealed to the town council, which has the right to reverse or modify such a decision, does not indicate that the commission's authority is merely advisory, as its decisions may be reversed or superseded only by positive action of another body. See CEO 77-7. Therefore, we believe that the commission does not constitute an "advisory body."

In addition, the commission also could not be considered an advisory body because of its land-planning responsibilities. In this regard, we refer to the commission's role in the designation of historic districts within the town. See CEO 76-156.

Accordingly, we find that the members of the Town of Palm Beach Landmarks Preservation Commission are "local officers" subject to the requirement of filing financial disclosure in accordance with s. 112.3145, F. S.