CEO 81-16 -- February 26, 1981

CITY BEACH EROSION ADVISORY BOARD

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO MEMBERS

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

SUMMARY:

Pursuant to Section 112.3145(1)(a)2, F. S., members of local boards which meet the definition of "advisory body" contained in Section 112.312(1) are exempted from the requirement of filing statements of financial interests. However, even though a particular board performs a solely advisory function and otherwise fulfills the tests of an "advisory body," that board is not to be considered an "advisory body" if it has "land-planning, zoning, or natural resources responsibilities." In prior advisory opinions a board has been considered to have "natural resources responsibilities" if its responsibilities lay in the area of natural resources. Upon further reflection, however, the Commission is persuaded that the Legislature did not intend quite so broad an application of the disclosure law. Thus, when a municipal beach erosion advisory board advises a municipal council which, in turn, must obtain county approval before constructing any erosion-prevention facilities, the advisory board's recommendation would not be a condition precedent to final governmental action so as to constitute any "responsibility" in the sense of "duty." Accordingly, members of such municipal beach erosion advisory board are not deemed to constitute local officers subject to financial disclosure.

QUESTION:

Are the members of the Beach Erosion Advisory Board of the City of Pompano Beach "local 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 "local officer" shall file a statement of financial interests within 30 days of the date of appointment and thereafter by noon of July 15 of each year. Section 112.3145(2)(b), F. S. The term "local officer" is defined to mean:

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.]

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.]

In applying these statutes, two matters are clear. First, it is clear that members of boards which meet the definition of "advisory body" are exempted from the requirement of filing statements of financial interests. Secondly, it is clear that, even though a particular board performs a solely advisory function and otherwise fulfills the tests of an "advisory body," that board is not to be considered an "advisory body" if it has "land-planning, zoning, or natural resources responsibilities." Otherwise, the statutory language about "responsibilities" would be redundant. Bodies with those responsibilities specifically are exempted from being "advisory bodies," and their members are not exempted from filing statements of financial interests.

In your letter of inquiry you advise that the Beach Erosion Advisory Board of the City of Pompano Beach was created by a resolution of the City Commission to study problems of beach erosion and methods of combating beach erosion in the City. In doing so, the Board is authorized to cooperate with and is required to study proposals of other groups, both private and governmental, in Broward County, as they may or may not affect the City. The Board is to make periodic reports to the City Commission. You also advise that in Broward County jurisdiction, control, and supervision over the construction of erosion-prevention facilities is vested exclusively in the Broward County Environmental Quality Control Board. Thus, the City does not possess such powers and must obtain a permit from the County Board for the construction of any erosion-prevention facilities. You also have advised that the Board has no budget.

In our view, the Board meets the definition of "advisory body" in Section 112.312(1), F. S. The Beach Erosion Advisory Board performs a solely advisory function and meets the budgetary tests set forth in that definition. Nevertheless, in order to determine whether members of the Board are "local officers" required to file statements of financial interests, we must determine also whether the Board has "natural resources responsibilities."

In previous opinions, we have advised that a board would have "natural resources responsibilities" if the board's responsibilities lie in the area of natural resources. See CEO's 76-78, 77-50 (Question 3), 77-54, and 77-71 (Question 1). Thus, even though the Board is responsible for merely rendering advice, if its advice concerns natural resources it would have "natural resources responsibilities."

Under this interpretation, we note that the Beach Erosion Advisory Board has been charged by City Resolution with the responsibilities of studying problems of beach erosion and of studying beach erosion proposals of other groups insofar as they might affect the City. These responsibilities lie in the area of natural resources; the Board is responsible for rendering advice concerning natural resources.

However, upon further reflection on the Legislature's use of the term "responsibilities," we are persuaded that the Legislature did not intend quite so broad an application of the financial disclosure law. In CEO 76-78, we read the term "responsibilities" as meaning "duties." We remain persuaded of that view. If a board has a duty to act, or is obligated to take some action, the board has "responsibilities," even though its action may consist merely of providing an advisory recommendation. Thus, for example, if a board has been delegated the responsibility (duty) of playing a role in a permitting, planning, or other type of process relating to natural resources, then that board would have "natural resources responsibilities." There, the board's recommendation would be a condition precedent to final governmental action.

On the other hand, if a board has been given the authority only to review generally some natural resource matter, to formulate policy recommendations, and to present its advice to a superior board or officer, the board would not have "natural resources responsibilities." That board would have no duty to take action in any particular matter.

In applying this distinction to the Beach Erosion Advisory Board, we find that the Board does not have "natural resources responsibilities." The Board plays no role in determining who may construct erosion prevention facilities, a matter which is handled entirely by the County. The Board's advice is not given to the County and is not a prerequisite to action by the County.

Accordingly, we find that the members of the Beach Erosion Advisory Board of the City of Pompano Beach are not "local officers" and therefore are not required to file statements of financial interests annually. Please note, however, that even members of advisory bodies are deemed to be public officers subject to the standards of conduct set forth in Section 112.313, F. S., including the requirement to file Form 3, Disclosure of Specified Business Interests, if applicable, under Section 112.313(9), F. S.