CEO 76-198 -- November 18, 1976

PERSONNEL BOARD FOR THE CITY OF MIAMI BEACH

APPLICABILITY OF FINANCIAL DISCLOSURE REQUIREMENTS AND CLIENT DISCLOSURE REQUIREMENTS TO MEMBERS

To: Robert H. Burns, Member, Personnel Board, Miami Beach

Prepared by: Phil Claypool

SUMMARY:

Members of a municipal personnel board with administrative and disciplinary authority over classified employees of the city are local officers pursuant to Florida Statute ss. 112.3145(1)(a)2. and 112.312(1)(1975) and therefore are subject to all disclosure requirements contained in s. 112.3145. An attorney who serves on the personnel board is subject to the filing of CE Form 2, Quarterly Client Disclosure, for every calendar quarter in which he made a reportable representation. "Representation" is defined by s. 112.312(15), as amended by Ch. 76-18, Laws of Florida, to mean "actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client." Representations by any partner or associate of the officer's firm of which the officer has knowledge also must be reported. A local officer's level of government for purposes of Form 2 is deemed to be the political subdivision within which he serves. See CEO 74-89A.

QUESTIONS:

1. Are members of my city's personnel board "local officers" for purposes of financial disclosure?

2. Are members of the Personnel Board for the City of Miami Beach required by the Code of Ethics for Public Officers and Employees to make any disclosures other than a disclosure of financial interests?

3. Under what circumstances must I, an attorney and a member of the Personnel Board for the City of Miami Beach, complete Form 2, Quarterly Client Disclosure, and what information must be disclosed on that form?

4. Does a member of the personnel board file Form 1, Statement of Financial Disclosure, as a candidate, local officer, state officer, or specified employee of a city agency?

5. Are the members of the personnel board who are elected to the board as representatives of the employees of the City of Miami Beach required to file Form 1, Statement of Financial Disclosure?

Question 1 is answered in the affirmative.

You have stated in your letter of inquiry that you are a "lay" member of the Personnel Board for the City of Miami Beach, which has jurisdiction over the classified employees of the city and hears matters of suspension and firing for disciplinary reasons. Section 83 of the Miami Beach City Code establishes the personnel board and provides for the selection of its members. Under that section the board is presently composed of 10 members. Six of the members are appointed by the city council; one of the members is the director of personnel, who is appointed by the city manager with the consent of the personnel board; and each of the remaining three members is elected by a specified class of city employees.

Under Fla. Stat. s. 112.3145(2)(b), each person defined to be a "local officer" for purposes of financial disclosure is required to file a statement of financial interests. The term "local officer" is defined in part as:

1. Every person who is elected to office in any political subdivision of the state, and every person who is appointed to fill a vacancy for an unexpired term in such an elective office.

2. 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. [Fla. Stat. s. 112.3145(1)(a)1. and 2.(1975).]

It is clear that each member of the personnel board is either elected or appointed to that office and therefore falls within either subparagraph 1. or subparagraph 2. of the above-cited provision. Thus the only question remaining is whether the personnel board constitutes an advisory body. "Advisory body" is defined in Fla. Stat. s. 112.312(1) as follows:

"Advisory body" means 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.

The powers and duties of the personnel board are set forth in s. 83 of the city code and include the authority to require performance of all personnel procedure and operations specified by the personnel rules; the approval of the budget request for the personnel department; the power to hear appeals from employee suspensions, reductions, or removals; the power to hear appeals, make investigations, and review administrative interpretations of personnel rules; and to direct administrative action consistent with its findings. Because these powers are not solely advisory, we find that the personnel board is not an advisory body within the meaning of Fla. Stat. s. 112.312(1). Accordingly, members of the personnel board are "local officers" and consequently are required to file a statement of financial interests in the manner specified by Fla. Stat. s. 112.3145(2)(b).

Question 2 is answered in the affirmative.

That members of the personnel board are "local officers" within the meaning of s. 112.3145, F. S., has been determined in our answer to question 1 above. Therefore, Fla. Stat. s. 112.3145(4) requires each member to complete and file Commission on Ethics Form 2, Quarterly Client Disclosure, when such disclosure is applicable. The circumstances under which Form 2, Quarterly Client Disclosure, must be completed and filed are discussed fully in our answer to question 3, below.

Additionally, members of the personnel board are "public officers," as that term is defined by Fla. Stat. s. 112.313(1). Therefore each member must complete and file Commission on Ethics Form 3, Disclosure of Specified Business Interests, and Form 4, Memorandum of Voting Conflict, if and when such forms are applicable. Fla. Stat. ss. 112.313(9) and 112.3143, respectively.

As to question 3, s. 112.3145(4), F. S., states:

Each state officer, local officer, and specified employee shall file a quarterly report of the names of clients represented for a fee or commission, except for appearances in ministerial matters, before agencies at his level of government. For the purposes of this part, agencies of government shall be classified as state level agencies or agencies below state level. The report shall be filed only when a reportable representation is made during the calendar quarter and shall be filed no later than 15 days after the last day of the quarter. Representation before any agency shall be deemed to include representation by such officer or specified employee or by any partner or associate of the professional firm of which he is a member and of which he has actual knowledge. For the purposes of this subsection, "representation before any agency" shall not include appearances before any court or judges or commissioners of industrial claims or representations on behalf of one's agency in his official capacity. Such term shall not include the preparation and filing of forms and applications merely for the purpose of obtaining or transferring a license based on a quota or a franchise of such agency or a license or operation permit to engage in a profession, business, or occupation, so long as the issuance or granting of such license [permit or transfer does not require substantial discretion,] a variance, a special consideration, or a certificate of public convenience and necessity.

As a local officer, you are required to file Form 2, Quarterly Client Disclosure, for every calendar quarter in which you made a reportable representation. A reportable representation essentially involves four considerations. It must be: A representation within the meaning of the Code of Ethics; before an agency at your level of government; for a fee or commission; and that is not an appearance in a ministerial matter.

"Representation" is defined by Fla. Stat. s. 112.312(15), as amended by Ch. 76-18, Laws of Florida, to mean

actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client.

"Representation" includes representation by yourself or by any partner or associate of your law firm of which you have actual knowledge. We have previously determined in CEO 76-170 that the reporting person therefore has an affirmative duty to see that he is informed of all representations required to be disclosed. "Representation" does not include appearances before any court, judges, commissioners of industrial claims, or representations on behalf of the personnel board in your official capacity. In addition, a number of other actions are excluded from the term "representation" by the last sentence of Fla. Stat. s. 112.3145(4), quoted above.

In a previous opinion of this commission, CEO 74-89A, we interpreted a local officer's level of government to be the political subdivision within which he serves. You therefore are required to disclose on Form 2 only those representations before agencies of the city.

"Ministerial matter" is defined by Fla. Stat. s. 112.312(13), as amended by Ch. 76-18, Laws of Florida, as

action that a person takes in a prescribed manner in obedience to the mandate of legal authority, without the exercise of the person's own judgment or discretion as to the propriety of the action taken.

An example of this, given in Form 2, is the filing of a document with a circuit court clerk.

If you have made any reportable representation during a calendar quarter, you must disclose the name of the client for whom a reportable representation was made and the name of the agency before which the client was represented.

As to question 4, as determined in our answer to question 1, above, members of the Personnel Board for the City of Miami Beach are "local officers" for the purposes of financial disclosure and should file Form 1 accordingly.

"Agency" is defined in Fla. Stat. s. 112.312(2) as

any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority or political subdivision of this state therein; or any public school, community college, or state university.

Because the Personnel Board for the City of Miami Beach is a commission within a municipal government entity, the Personnel Board is an agency of a city, and Form 1, Statement of Financial Disclosure, should be completed accordingly.

In accordance with our answer to question 1, above, question 5 is answered in the affirmative.