CEO 90-67 -- October 19, 1990

FINANCIAL DISCLOSURE; CONFLICT OF INTEREST

DISTRICT MEDICAL EXAMINERS AND ASSOCIATE

MEDICAL EXAMINERS DISCLOSING CONFLICTING INTERESTS

To: Wallace M. Graves, Jr., M.D., Chairman, Medical Examiners Commission (Fort Myers)

SUMMARY:

Chapter 90-169, Laws of Florida, requires that a district medical examiner file an affidavit assuring that associate medical examiners appointed by him have no conflicting financial interests or clients represented before agencies pursuant to Section 112.3145, Florida Statutes. In order to accomplish this, it is suggested that the district examiner discuss with each of his associate examiners the associate's financial interests, to the extent that they would be disclosed under Section 112.3145, and evaluate those interests in light of the standards of conduct provided in Section 112.313, Florida Statutes. In particular, those would include: involvement with a business entity that is selling or leasing goods, services, or realty to the district medical examiner's office [Section 112.313(3)]; employment or contractual relationships that are with business entities doing business with that office or that potentially would create a continuing or frequently recurring conflict [Section 112.313(7)(a)]; and gifts over $100 with any potential to influence official duties [Sections 112.313(2) and (4)].

QUESTION:

What steps must a District Medical Examiner take in order to comply with the requirements of Section 2 of Chapter 90-169, Laws of Florida, which requires a District Medical Examiner to file an affidavit assuring that his Associate Medical Examiners have no conflicting financial interests or clients represented before agencies pursuant to Section 112.3145, Florida Statutes?

In CEO 88-25, we considered several questions relating to District Medical Examiners and Associate Medical Examiners, who function in accordance with the requirements of Chapter 406, Florida Statutes. In part of that opinion we concluded that, although District Medical Examiners and their Associate Examiners were public officers subject to the standards of conduct imposed by Part III, Chapter 112, Florida Statutes, neither category of public officer was required to file statements of financial interests under Section 112.3145, Florida Statutes.

It appears that Chapter 90-169, Laws of Florida (CS/CS/SB 300), was adopted as a result of our opinion. Section 1 of the Chapter amends the definition of "local officer" in Section 112.3145 to require that District Medical Examiners file statements of financial interests. Section 2 of the Chapter amends Section 406.06(6), Florida Statutes, to specify that District Medical Examiners and Associate Examiners are public officers subject to the standards of conduct contained in Section 112.313, Florida Statutes. Finally, Section 2 also amended Section 406.06(2), Florida Statutes, so that the subsection will read:

The district medical examiner may appoint as many physicians as associate medical examiners as may be necessary to provide service at all times and all places within the district. Associate medical examiners shall serve at the pleasure of the district medical examiner. The district medical examiner shall file an affidavit with the supervisor of elections in the county in which he resides assuring that associate medical examiners have no conflicting financial interests or clients represented before agencies pursuant to s. 112.3145. [New language emphasized.]

As a result of this language, you question what steps a District Medical Examiner must take to comply; what statements must the affidavit contain to comply with the law; how can a District Medical Examiner assure that someone else does not have a conflict; whether it is sufficient to state that to the best of his knowledge the Associate Medical Examiners have no conflict; whether the District Medical Examiner can require that his Associate Medical Examiners provide him with an affidavit stating that they are in compliance with Section 112.313 and Section 112.3145, Florida Statutes; by what date must the affidavit be filed; and whether the affidavit is required on an annual basis.

Although we do not have the authority to render an advisory opinion that would provide a binding interpretation of statutes not contained in Part III of Chapter 112, Florida Statutes, it is apparent that any interpretation of Section 406.06(2), as amended, will have to rely upon the meaning and application of provisions within Part III of Chapter 112. Therefore, we have undertaken this opinion in an effort to clarify how the provisions of Part III of Chapter 112 relate to Section 406.06(2).

At the outset, we note that the amendment relates to conflicting financial interests and clients represented before agencies, whereas Section 112.3145 requires the disclosure of all significant financial interests rather than only those that may be conflicting. Because of this difficulty in reconciling the language of the new law with the purpose of Section 112.3145, we turn to the legislative history of the act.

As originally filed, SB 300 would have required both District Medical Examiners and Associate Medical Examiners to file statements of financial interests with the supervisor of elections pursuant to Section 112.3145, Florida Statutes. In addition, persons holding either position were designated as public officers subject to the standards of conduct contained in Section 112.313, Florida Statutes. Upon the recommendation of committee staff, the Senate Ethics and Elections Committee removed the requirement that Associates file financial disclosure, on the basis that the financial disclosure law primarily was directed at persons in supervisory or policy making positions. When subsequently considering CS/SB 300, the Senate Governmental Operations Committee adopted as an amendment the affidavit requirement language. The Senate Staff Analysis for CS/CS/SB 300 sheds no further light on the intent of this amendment.

By deleting the language in the original bill that would have required Associate Examiners to file financial disclosure under Section 112.3145, the Legislature clearly contemplated that Associates need not file a statement of their financial interests as a matter of public record. For this reason, it does not appear that Associates should be required to file with the District Medical Examiner a listing of those financial interests that would be disclosed under Section 112.3145. As we understand the public records law, once filed with the District Medical Examiner, such lists would be available for examination by the public, thus accomplishing indirectly what the new law declined to do directly.

On the other hand, it also appears that the statute seeks to impose some degree of responsibility on District Medical Examiners to see that the financial interests of Associates he has appointed do not conflict with their public responsibilities. Therefore, it does not appear that simply having the Associate Examiners certify a lack of conflicting interests to the Medical Examiner, who would take those statements at face value in filing his affidavit, would comply with the intent of the law.

Instead, our suggestion is that the District Examiner discuss with each of his Associate Examiners the Associate's financial interests, to the extent that they would be disclosed under Section 112.3145, and evaluate those interests in light of the standards of conduct provided in Section 112.313, Florida Statutes. Although at first blush this would appear to be a lengthy and difficult process, the functions of the District Medical Examiners are so limited in scope that very few types of interests would present a conflict under Section 112.313. In particular, those would include: involvement with a business entity that is selling or leasing goods, services, or realty to the District Medical Examiner's office [Section 112.313(3)]; employment or contractual relationships that are with business entities doing business with that office or that potentially would create a continuing or frequently recurring conflict [Section 112.313(7)(a)]; and gifts over $100 with any potential to influence official duties [Sections 112.313(2) and (4)]. Several of these potential conflicts were discussed in our opinion CEO 88-25. If a question arises during this process regarding the scope or application of any of these provisions, the District Examiner may contact our staff for further assistance.

Section 112.3145(4) requires the disclosure of clients represented before certain agencies by a public officer or a firm of which he is a member. As we have construed this law, Associate Examiners would be required to disclose only representations made in a private capacity before the Medical Examiner's District which he serves. See CEO 81-63. As we find it difficult to understand how this would occur in the context of the Medical Examiner's functions, it appears that this aspect of Section 112.3145 should be of little concern.

The remainder of your questions concern the substance of the affidavit, whether the affidavit may be based upon "knowledge and belief," and the deadlines for filing or updating the affidavit. As the answers to these questions apparently do not turn on the application of any provision in Part III of Chapter 112, we are unable to provide you with any further guidance.

Your questions are answered accordingly.