CEO 78-35 -- June 13, 1978

SCHOOL BOARD CITIZENS ADVISORY COMMITTEE

APPLICABILITY OF THE CODE OF ETHICS TO MEMBERS

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

Prepared by: Phil Claypool

SUMMARY:

The standards of conduct provisions of the Code of Ethics for Public Officers and Employees, as contained in s. 112.313, F. S., apply to public officers, public employees, and, in some cases, candidates for public office. For purposes of s. 112.313, the term "public officer" is defined to include "any person elected or appointed to hold office in any agency, including any person serving on an advisory body." Section 112.313(1), F. S. 1977. The courts have ruled that persons who are neither elected by the public nor appointed to office by an official authority, but who instead accede to positions in which they perform a public function by agreement among themselves, are not public officers. Florida Gulf Health Systems Agency, Inc. v. Commission on Ethics, 354 So.2d 932 (2 D.C.A. Fla., 1978). The same is deemed to be true of a person whose public service results from his merely volunteering to serve, without any action by a public official or body to name or designate him to perform that public service. Accordingly, a member of a county school system citizens advisory committee who neither is elected nor appointed but merely volunteers to serve on that committee is not subject to the Code of Ethics.

QUESTION:

Do the standards of conduct provisions of the Code of Ethics for Public Officers and Employees apply to a member of a ____ County school system citizens advisory committee who wishes to do business with the school board, where such member is neither elected nor appointed, but merely volunteers to serve on that committee?

Your question is answered in the negative.

In your letter of inquiry you advise that the School Board of ____ County is assisted by numerous advisory committees at individual school levels and other administrative levels, established by the school board pursuant to s. 229.58, F. S. 1977. You also advise that the vast majority of these persons, including ____ are not appointed or designated to serve on an advisory committee by the school board or by any person; rather, they simply announce their willingness to serve on a particular committee and thereafter have the absolute right to serve on the committee.

The standards of conduct provisions of the Code of Ethics for Public Officers and Employees, as contained in s. 112.313, F. S. 1977, apply to public officers, public employees, and, in some cases, candidates for public office. Members of the ____ County school system citizens advisory committees clearly are not public employees or candidates. Therefore, the Code of Ethics will govern their conduct only if they fall within the category of "public officers."

For purposes of the standards of conduct section of the Code of Ethics, the term "public officer" is defined to include

any person elected or appointed to hold office in any agency, including any person serving on an advisory body. [Section 112.313(1), F. S. 1977.]

Persons who are neither elected by the public nor appointed by an official authority, but who instead accede to positions in which they perform a public function by agreement among themselves, are not "public officers." Florida Gulf Health Systems Agency, Inc. v. Commission on Ethics, 354 So.2d 932 (2 D.C.A. Fla., 1978). We are of the opinion that the same is true of a person whose public service results from his merely volunteering to serve, without any action by a public official or body to name or designate him to perform that public service. To view the situation otherwise in this case would have the anomalous effect of finding ____ to be subject to the prohibition against doing business with the school board [s. 112.313(3), F. S. 1977], while disallowing him, an advisory board member, the potential exemption of waiver upon disclosure to his appointing authority [s. 112.313(12), F. S. 1977], because he was not appointed by any individual or body.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not apply to a member of a ____ County school system citizens advisory committee where such member is neither elected nor appointed but merely volunteers to serve on that committee.