CEO 80-8 -- January 17, 1980

CODE OF ETHICS

AUTHORITY OF CITY COMMISSION TO DISQUALIFY CANDIDATES

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

Prepared by: Phil Claypool

SUMMARY:

The Code of Ethics for Public Officers and Employees does not include, as one of the penalties or remedies for a violation, disqualification of a candidate after an election; the only penalty under the Code of Ethics for candidates who fail to file financial disclosure at the time of qualification is removal from the ballot. Therefore, when all five candidates for seats on a city council failed to file disclosure at the time they qualified, but when three of the candidates did file before the day of the election, the Code of Ethics does not give the city council authority to disqualify from holding office a winning candidate who failed to file disclosure at the time of qualification. In the situation in which no candidate was disqualified from the ballot before the election, the Code of Ethics appears to contemplate that those persons receiving the highest number of votes would have been elected, subject to possible removal from office or other penalties provided for "public officers" under s. 112.317(1)(a), F. S., and complaint procedures in the code, for failure to file financial disclosure timely. Also, other provisions of law outside the jurisdiction of the Commission on Ethics have potential applicability in such a case.

QUESTION:

Does the Code of Ethics for Public Officers and Employees authorize a city council to disqualify certain candidates, after an election has been held, for failure to file statements of financial interests when none of the candidates filed statements of financial interests at the time they qualified?

In your letter of inquiry you advise that recently a municipal election was conducted in the City of Edgewood in order to fill three of the five city council seats. You further advise that five candidates filed qualifying papers for these seats, although, at the time the qualifying papers were filed, none of the candidates filed a statement of financial interests as required by s. 112.3145(2)(a), F. S.

In addition, you advise that, after filing their qualifying papers and after the final date for qualifying for office, but prior to the election date, three of the five candidates filed the required statement of financial interests. Although none of the five candidates had filed the statement at the time of qualifying, and although two of the five had not filed such a statement by the time of your inquiry, all five candidates' names appeared on the ballot. At the time of certifying the results of the election, the city council determined that the two individuals who had not filed statements of financial interests were not eligible for election but that the remaining three candidates who had filed statements after the qualifying period were eligible to run for the three vacant seats. The three individuals who had filed statements received the second, third, and fourth highest number of ballots cast in the election. The two individuals who did not file the statements received the highest and the lowest number of votes cast.

In order to respond to your question, it is necessary for us to examine the Code of Ethics for Public Officers and Employees (part III of ch. 112, F. S.) in order to determine what authority it grants to this commission and to the city council under the circumstances you have described. Please note that our advisory opinion authority extends only to the application of this part and not to the application of other provisions of the Florida Statutes. See s. 112.322(3), F. S.

It is apparent that a candidate seeking election to a municipal office is required to file a statement of financial interests together with, and at the same time he files, his qualifying papers. Section 112.3145(2)(a), F. S. Therefore, the question becomes a matter of determining what penalties and remedies are available under the Code of Ethics if a candidate for municipal office files a statement of financial interests late or not at all. Section 112.3145(2)(a) does not indicate whether a candidate is eligible or properly qualified for office if he does not file a statement of financial interests with his qualifying papers. However, s. 112.317(1)(c), F. S., implies that none of the candidates here were properly qualified. That provision provides that violations of s. 112.3145 by a candidate constitute grounds for and may be punished by disqualification from being on the ballot. See also s. 99.012(6), F. S., which indicates that filing a statement of financial interests is a precondition to qualifying.

Nevertheless, the Code of Ethics does not include disqualification of a candidate after election as one of the penalties or remedies provided for a violation. If a complaint were to be filed with this commission prior to an election, we are authorized to recommend disqualification of a candidate to the city council for that candidate's failure to file a statement of financial interests, in accordance with s. 112.3145, F. S. Section 112.324(4)(e), F. S. If we were to receive a complaint after the election against a candidate who had not filed a statement of financial interests timely, we are authorized to investigate and find this a violation. Section 112.324. In such a case, one of the applicable penalties would include removal or suspension from office. See s. 112.317(1)(a), F. S. Therefore, the Code of Ethics does not give the city council authority to disqualify a candidate except by removal from the ballot under s. 112.324(4)(e). Apparently, in the instant situation, with no candidate having been disqualified from the ballot before the election, the Code of Ethics contemplates that those persons receiving the highest number of votes would have been elected, subject to possible removal under the procedures of ch. 112 for failure to file financial disclosure timely.

However, there may be other provisions in the statutes or in the city charter which are not within our jurisdiction to interpret and which would give the city council authority to disqualify the two candidates after the election. In addition, there may be other legal avenues which would have the effect of disqualifying candidates who have failed to file financial disclosure when qualifying; for example, the Governor has plenary power under s. 1, Art. IV, State Const., to take care that the laws be faithfully executed, or a quo warranto action might be filed in an appropriate court. Accordingly, although we are of the opinion that the Code of Ethics did not authorize the city council to proceed as it did, we are unable to give a final answer to your question on the validity of the disqualification of the two candidates or on the validity of the election itself. Finally, please be advised that we have no authority under the Code of Ethics to require a special election.