CEO 83-47 -- July 28, 1983

FINANCIAL DISCLOSURE

APPLICABILITY OF FINANCIAL DISCLOSURE LAW TO PRIVATE INDUSTRY COUNCIL

To: Ms. Rochelle J. Daniels, Assistant General Counsel for Broward County, Broward Employment and Training Administration Attorney

SUMMARY:

The members of the Broward Employment and Training Administration Private Industry Council are "local officers" subject to the requirement of filing a statement of financial interests annually under Section 112.3145, Florida Statutes. The Council's authority to approve a job training plan before training funds can be spent, to select grant recipients, and to exercise oversight and policy guidance over the job training plan indicate that it is not an "advisory body" exempted from the disclosure law.

QUESTION:

Are the members of the Broward Employment and Training Administration Private Industry Council "local officers" subject to the requirement of filing a statement of financial interests annually?

Your question is answered in the affirmative.

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 include:

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, Florida Statutes (1981).]

Under this provision, the term "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), Florida Statutes (1981).]

In your letter of inquiry you advise that the Broward Employment and Training Administration Council was created by an interlocal agreement between Broward County and the cities of Fort Lauderdale and Hollywood for the operation and administration of CETA programs in the area. You also advise that the BETA Industry Council (BIC) is organized as an advisory board to the BETA Council in order to make recommendations with regard to the expenditure of CETA funds currently coming into the County. You further advise that the BIC has been designated as a Private Industry Council under the Federal Job Training Partnership Act (Public Law 97-300). Under the Act, a Private Industry Council may assume a variety of forms and functions, which are specified in Section 103 of the Act as follows:

(a) It shall be the responsibility of the private industry council to provide policy guidance for, and exercise oversight with respect to, activities under the job training plan for its service delivery area in partnership with the unit or units of general local government within its service delivery area.

(b)(1) The council, in accordance with an agreement or agreements with the appropriate chief elected official or officials specified in subsection (c), shall --

(A) determine procedures for the development of the job training plan, which may provide for the preparation of all or any part of the plan (i) by the council, (ii) by any unit of general local government in the service delivery area, or by an agency thereof, or (iii) by such other methods or institutions as may be provided in such agreement; and

(B) select as a grant recipient and entity to administer the job training plan (which may be separate entities), (i) the council, (ii) a unit of general local government in its service delivery area, or an agency thereof, (iii) a nonprofit private organization or corporation, or (iv) any other agreed upon entity or entities.

(2) The council is authorized to provide oversight of the programs conducted under the job training plan in accordance with procedures established by the council. In order to carry out this paragraph, the council shall have access to such information concerning the operations of such programs as is necessary.

* * *

(d) No job training plan prepared under section 104 may be submitted to the Governor unless (1) the plan has been approved by the council and by the appropriate chief elected official or officials specified in subsection (c), and (2) the plan is submitted jointly by the council and such officials or officials.

(e) In order to carry out its functions under this Act, the council --

(1) shall, in accordance with the job training plan, prepare and approve a budget for itself, and

(2) may hire staff, incorporate, and solicit and accept contributions and grant funds (from other public and private sources).

(f) As used in this section, the term "oversight" means reviewing, monitoring, and evaluating.

Under Section 104 of the Act, funds appropriated under the Job Training Partnership Act must be extended in accordance with the job training plan.

In a telephone conversation with our staff, you advised that the BIC will not prepare the job training plan for its service delivery area. The BIC will select grant recipients, but administration of the plan will not be handled directly by the BIC. Although the BIC is authorized to provide oversight of the programs conducted under the job training plan, you advise that this function probably will be contracted out to a CPA firm or staff will be hired under the BETA Council to perform this function. The BIC will have no budget for itself, you advise, will not be hiring staff, will not incorporate, but will accept contributions and grant funds.

Under Section 102 of the Act, members of Private Industry Councils are appointed by the chief elected official of the units of general local government within the service delivery area. Therefore, we find that each Council member will be an "appointed member of a . . . council of [a] political subdivision of the state." As the BIC apparently will not have land-planning, zoning, or natural resources responsibilities, the answer to your question turns on whether the BIC is an "advisory body."

As you have advised that the BIC will have no budget, we find that it meets the budgetary tests set forth in the definition of "advisory body," above. However, we do not find that the powers and authority of the BIC are solely advisory.

In our view, a body performs a solely advisory function when it has been granted the authority to review a situation and render its advice to another body which is authorized to make the final decision. For example, the city finance and review committee in CEO 78-68 was authorized generally to monitor and review the financial position of the city and to make such comments and recommendations to the board of commissioners as would be deemed appropriate. Similarly, in CEO 78-78, a county manpower planning council authorized to submit recommendations to the board of county commissioners, to monitor and provide for evaluations of employment and training programs, and to analyze needs of employment, training, and related services was found to be advisory where any final decision with respect to manpower plans was to be made by the board of county commissioners.

In contrast, although the BIC does not exercise all of the powers it might under the Job Training Partnership Act, it must approve the job training plan before any training funds can be spent, it will select grant recipients, and it will exercise oversight and policy guidance over the job training plan. These powers evidence a role for the BIC which is not primarily recommendatory or advisory in nature, but which is more in the nature of a partnership with local elected officials in the area of job training.

Accordingly, we find that the members of the Broward Employment and Training Administration Private Industry Council are "local officers" subject to the requirement of filing a statement of financial interests annually pursuant to Section 112.3145, Florida Statutes.