CEO 83-6 -- January 27, 1983

FINANCIAL DISCLOSURE; CODE OF ETHICS

APPLICABILITY OF FINANCIAL DISCLOSURE LAW AND CODE OF ETHICS TO DISTRICT HEALTH COUNCIL

To: Mr. Robert V. Romani, Attorney for District IX Health Council, Inc.

SUMMARY:

The members of the Board of Directors of the District IX Health Council, Inc. are not "local officers" under Section 112.3145, Florida Statutes, and therefore are not subject to the requirement of filing a statement of financial interests annually. Florida Gulf Health Systems, Inc. v. Commission on Ethics, 354 So.2d 932 (Fla. 2d DCA 1978), and CEO 82-5 are referenced. Nor are the members of the Health Council subject to the conflict of interest provisions of the Code of Ethics, as they do not hold office in an agency, but rather in a business entity, as those terms are defined respectively in Sections 112.312(2) and 112.312(3), Florida Statutes.

QUESTION 1:

Are the members of the Board of Directors of the District IX Health Council, Inc. "local officers" subject to the requirement of filing a statement of financial interests annually?

This question is answered in the negative.

In your letter of inquiry you advise that the District IX Health Council, Inc. is a nonprofit corporation which has been organized to assist the Department of Health and Rehabilitative Services in assessing health needs in Indian River, Martin, Okeechobee, Palm Beach, and St. Lucie counties. Members of the Board of Directors, you advise, are volunteers who are appointed for specific terms of office by the various county commissions within the Health Council's jurisdiction.

The Code of Ethics for Public Officers and Employees provides that each "local officer" shall file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes. The term "local officer" is defined to mean

[a]ny 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, Florida Statutes (1981).]

In the case of Florida Gulf Health Systems Agency, Inc. v. Commission on Ethics 354 So.2d 932 (Fla. 2d DCA 1978), the District Court of Appeal held that the members of the governing board of a health systems agency structured as a nonprofit organization could not be termed "local officers" subject to the financial disclosure law since they were neither appointed nor elected as contemplated by that law. Based upon this decision, we recently have found that members of district mental health boards created as nonprofit corporations are not subject to the financial disclosure law. See CEO 82-5. It is our understanding that the local health councils have replaced the health systems agencies under the Health Facilities and Health Services Planning Act, Sections 381.493-381.499, Florida Statutes (Supp. 1982).

Accordingly, as the local Health Council has been created as a nonprofit corporation, we find that the members of its Board of Directors are not "local officers" and therefore are not subject to the requirement of filing financial disclosure annually.

QUESTION 2:

Are the members of the District IX Health Council, Inc. Board of Directors subject to the conflict of interest provisions of the Code of Ethics for Public Officers and Employees?

This question also is answered in the negative.

Section 112.313, Florida Statutes, creates numerous standards of conduct for public officers and public employees, including the requirement of filing a disclosure of specified business interests. Section 112.313(1), Florida Statutes, defines "public officer" to include

any person elected or appointed to hold office in any agency, including any person serving on an advisory body.

We find that this provision does not apply to the Directors of the Health Council, because they do not hold office in an "agency," but rather serve as Directors of a business entity. The term "business entity" is defined in Section 112.312(3), Florida Statutes, to mean

any corporation, partnership, limited partnership, proprietorship, firm, enterprise, franchise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in this state.

As a private, nonprofit corporation doing business in this State, the Health Council is a business entity and not an "agency," a term which is defined as follows:

[A]ny 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. [Section 112.312(2), Florida Statutes (1981).]

Accordingly, we find that members of the Board of Directors of the District IX Health Council, Inc. are not subject to the standards of conduct contained in the Code of Ethics for Public Officers and Employees and are not subject to the requirement of filing disclosures of their specified business interests.