CEO 81-26 -- May 14, 1981

STATE HAZARDOUS WASTE POLICY ADVISORY COUNCIL

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO MEMBERS

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

SUMMARY:

Pursuant to Section 112.3145(1)(c)2, F. S., appointed members of boards having statewide jurisdiction which meet the definition of "advisory body" contained in Section 112.312(1), F. S., are exempted from the requirement of filing statements of financial interests. The responsibilities of the State Hazardous Waste Advisory Council set forth in Section 403.729, F. S., are solely advisory, and the Council has not been appropriated any operating funds. Therefore, the Council is an "advisory body." In addition, the Commission reverses the position taken in CEO 76-143 and CEO 77-94 and finds that even though a body with statewide jurisdiction has natural resources responsibilities, its members are not automatically required to file financial disclosure.

QUESTION:

Are the members of the State Hazardous Waste Policy Advisory Council "state officers" subject to the requirement of filing statements of financial interests annually?

Your question is answered in the negative.

The Code of Ethics for Public Officers and Employees provides that each "state officer" shall file a statement of financial interests within 30 days from the date of appointment and thereafter by noon of July 15 of each year. Section 112.3145(2)(b), F. S. The term "state officer" is defined to include:

An 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.]

In turn, "advisory body" is defined 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.]

The State Hazardous Waste Policy Advisory Council has been created within the Department of Environmental Regulation (D.E.R.) and is composed of 13 members appointed by the Governor. Section 403.729, F. S. (Supp. 1980). Under that Section, the Council is charged with the responsibilities of assessing the hazardous waste program of D.E.R.; reviewing the agreement between D.E.R. and the U.S. Environmental Protection Agency, which authorizes the State to assume responsibility for the federal hazardous waste management program; reviewing the costs and benefits of alternative technologies relating to the transportation, storage, treatment, and disposal of hazardous waste in the State; and analyzing the market for hazardous waste as a secondary raw material. The Council's assessment may include recommendations as to the geographic distribution of disposal facilities; the adequacy of existing legislative, administrative, and economic mechanisms relating to hazardous waste; and potential problems and solutions in the siting of hazardous waste facilities. The Council is authorized to prepare and distribute public education materials relating to all aspects of hazardous waste and is required to prepare a report of its findings and recommendations to be presented to the Secretary of D.E.R., the Governor, the President of the Senate, and the Speaker of the House of Representatives.

In a telephone conversation with our staff, the Executive Director of the Council advised that the Council has only the responsibilities set forth in Section 403.729, F. S., and that it has no responsibilities under federal law. While the Council is required to review D.E.R. rules relating to hazardous waste, the Council has no authority to veto proposed rules and its suggestions are merely advisory, he related.

We are of the opinion that the powers of the Council are solely advisory and do not include the determination of any personal or property rights, duties, or obligations. The Council's authority to prepare and distribute public education materials relating to hazardous waste does not involve the determination of any personal or property rights, duties, or obligations. Rather, we perceive that authority to be advisory in nature, contemplating the provision of information to the public, generally. In a telephone conversation with our staff, Ms. Mary Talton of the Department of Environmental Regulation advised that the Council has not been appropriated any operating funds for the current fiscal year. Therefore, the Council is an "advisory body" as defined in Section 112.312(1), F. S.

In two previous opinions we have found that a body with statewide jurisdiction and natural resources responsibilities may not be deemed an "advisory body" for purposes of the above-quoted definition of "state officer," even though the body otherwise would fall within the statutory definition of "advisory body." See CEO's 76-143 and 77-94. As explained in CEO 76-143, this additional requirement was based both on the fact that members of local advisory boards with natural resources responsibilities specifically are required to file financial disclosure and on our belief at that time that the Legislature did not intend to impose a greater burden of disclosure upon local board members than upon those at the state level of government. Therefore, we advised that statewide boards with land- planning, zoning, or natural resources responsibilities would not be deemed to be "advisory bodies," although we acknowledged that the statute does not stipulate within the definition of "state officer" that boards with land-planning, zoning, or natural resources responsibilities may not be deemed advisory.

Upon further consideration of this issue, we are of the opinion that such a requirement should not be implied from the statute. The omission of language from a statute establishes a presumption that the Legislature did not intend to include the provision. 30 Fla. Jur. Statutes s. 83. We have discovered nothing which would indicate that the Legislature inadvertently omitted any language from the definition of "state officer." In addition, we are aware of no statewide bodies with zoning or land-planning responsibilities. This would indicate that the Legislature probably did not intend to include statewide bodies with land-planning, zoning, or natural resources responsibilities.

Accordingly, we find that the members of the State Hazardous Waste Policy Advisory Council are not "state officers" subject to the requirement of filing statements of financial interests in accordance with Section 112.3145, F. S.