CEO 75-166 -- August 6, 1975
DISCLOSURE REQUIREMENTS
ATTORNEY EMPLOYED BY STATE AGENCY
To: T. Terrell Sessums, General Counsel, Tampa Port Authority, Tampa
Prepared by: Gene Rhodes
SUMMARY:
Section 112.313(3), F. S. (1974 Supp.), requires that a disclosure of specified interests (CE Form 3) be made within 45 days of one's becoming an officer or employee or within 45 days of acquiring such interest or position specified by that section. There is no statutory requirement for an annual disclosure of such interests; rather, CE Form 3 becomes a permanent public record and need not be refiled unless one's circumstances change so as to require disclosure of new information.
Where one's public position changes from state to local, however, Form 3 must be filed again, for the place of filing changes from the office of the Secretary of State to that of the Circuit Court Clerk. Conversely, if the place of filing is the same for two public positions, one need not refile based on the change of status.
A public officer or employee who serves as director of a bank is required to file CE Form 3 even though the bank does no business with the agency of which he is an officer or employee. Section 112.313(3), supra, requires the disclosure of certain specified interests regardless of the relationship between one's agency and that business.
CE Form 2, the Disclosure of Clients Represented Before Agencies, is required to be filed only by public officers and candidates for office. Public employees are not subject to the disclosures required by s. 112.3145(1), F. S., and filed on CE Form 2.
QUESTIONS:
1. Am I, as general counsel for the Tampa Port Authority, required to make a disclosure of specified interests on an annual basis?
2. Does my change in status from public officer to public employee require that I again make a disclosure of specified interests?
3. Am I, as a director of the Southeast Bank of Tampa and an employee of the Tampa Port Authority, required to make a disclosure of specified interests even though no state or Tampa Port Authority funds are deposited in Southeast Bank of Tampa?
4. Am I, as an employee of the Tampa Port Authority, required to file a Statement of Financial Disclosure, CE Form 1, or a Quarterly Statement of Disclosure of Clients Represented Before Agencies, CE Form 2?
5. Would my disclosure requirements be the same if I were a private attorney retained by Tampa Port Authority?
Question 1 is answered in the negative.
The Code of Ethics provides in relevant part:
If a public officer or employee of an agency is an officer, director, partner, proprietor, associate or general agent (other than a resident agent solely for service of process) of, or owns a material interest in, any business entity which is granted a privilege to operate, or is doing business with an agency of which he is an officer or employee, he shall file a statement disclosing such facts within forty-five days of becoming an officer or employee or within forty-five (45) days of the acquisition of such position or of such material interest. [Section 112.313(3), F. S. (1974 Supp.).]
There is no statutory requirement that you make annual disclosure of specified interests on CE Form 3, the form prescribed by the commission for compliance with s. 112.313(3), supra. Once properly filed, Form 3 becomes a permanent public record and it is not necessary to file again unless your circumstances change so as to require a disclosure of new information of the type required to be listed on this form.
Question 2 is answered in the affirmative.
First, it should be noted that while you were serving as a State Representative you were required to make disclosure of specified interests on CE Form 3, the form prescribed by the Commission on Ethics for compliance with s. 112.313(3), supra. Previous disclosures filed by you with the Secretary of State indicating your directorship of the Southeast Bank of Tampa, though consistent with the scope and spirit of the disclosure law which became effective on July 1, 1974, were not made on the appropriate form pursuant to s. 112.3145, F. S. (1974 Supp.). Although you did file CE Form 3 with the Secretary of State on June 27, 1975, this was not until after your status had changed from a public officer (State Representative) to a public employee (general counsel for the Tampa Port Authority). It will now be necessary for you to refile CE Form 3 since your new position requires that you file with the Clerk of the Circuit Court for Hillsborough County, rather than with the Secretary of State. Section 112.313(3), supra. Conversely, if the place of filing is the same for two public positions, there is no need for one to refile when his status changes from one of the positions to the other or when two or more such positions are held concurrently.
Question 3 is answered in the affirmative.
The relevant portion of the Code of Ethics is quoted above in question 1, s. 112.313, supra. You are an employee of an agency (Tampa Port Authority), s. 112.312(1), supra, and you are a director of a business entity (Southeast Bank of Tampa), s. 112.312(2), supra, which is granted a privilege to operate. Therefore, under the statute, you are required to make a disclosure of specified interests regardless of the business relationship between the state or Tampa Port Authority and Southeast Bank of Tampa.
Question 4 is answered in the negative.
The Code of Ethics requires that only candidates for nomination or election and public officers file statements of financial disclosure, s. 112.3145(1), supra, and quarterly statements of disclosure of clients represented before agencies, s. 112.3145(1)(c), supra. Since you are neither a candidate for nomination or election nor a public officer, you need not file CE Form 1 or CE Form 2.
As to question 5, it is the policy of the Commission on Ethics to render official advisory opinions only when requested by public officers or employees or candidates for nomination or election concerning real, as opposed to hypothetical, questions involving their particular positions. As you can appreciate, there are many variables which must be considered before we can issue an advisory opinion. We feel it would be counter-productive to issue binding advisory opinions on hypothetical situations.