CEO 91-73 -- December 6, 1991

FINANCIAL DISCLOSURE

APPLICABILITY OF FINANCIAL DISCLOSURE LAW

TO DEPARTMENT OF TRANSPORTATION EMPLOYEE

To: Warren G. Clary, P.E., Professional Engineer Administrator, Department of Transportation (Tallahassee)

SUMMARY:

The Code of Ethics provides that each "specified state employee" shall file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes. The term "specified state employee" is defined in Section 112.3145(1)(b)3. to include certain high-level administrators within each state department, division, and bureau, as well as individuals "having the power normally conferred upon such persons, by whatever title." As the Department of Transportation is not structured on the department-division-bureau model, a comparison of D.O.T. position descriptions with those positions enumerated in the Code of Ethics is necessary in order to determine the applicability of the financial disclosure law to D.O.T. employees.

Under Section 20.23(3)(d)2, Florida Statutes (Supp. 1990), eight offices have been created for D.O.T., each of which is administered by a manager appointed by the Department Secretary. The positions of the eight managers are the equivalent of division directors. Persons in these positions therefore would be considered "specified state employees" subject to financial disclosure.

The Office of Design is divided into seven units, each the equivalent of a bureau, including the Roadway Design Office where the employee is located. The Roadway Design Office is further divided into eight sections. Because the employee is the equivalent of a section administrator, he is not a "specified state employee" required to file financial disclosure annually.

QUESTION:

Are you, a Professional Engineer Administrator with the Florida Department of Transportation, Office of Roadway Design, CADD Operations, a "specified state employee" who is required to file financial disclosure pursuant to Section 112.3145(2)(b), Florida Statutes?

Your question is answered in the negative.

In your letter of inquiry and in information provided by both you and your agency's personnel office, we are advised that you are employed by the Florida Department of Transportation as a Professional Engineer Administrator in the Office of Design, Roadway Design, CADD Operations (computer-aided design and drafting). We also are advised that in this position, you perform highly advanced engineering work which involves the statewide coordination and development of budgets, work plans, scopes and criteria for engineering application software, which includes supervision of software development. Further, we are advised that you are responsible for ensuring the compatibility of the Department's engineering computer system, and direct staff in all engineering software development applications. The Department contends that because of the highly advanced nature of the work your position performs, and because you report directly to the State Roadway Design Engineer, who is the equivalent of a bureau chief, your position is equivalent to that of an assistant bureau chief. For that reason, the Department has included you in its list of "specified state employees" who are required to file financial disclosure.

The Code of Ethics for Public Officers and Employees provides that "specified state employees" shall file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes. The term "specified state employee" includes:

Each appointed secretary, assistant secretary, deputy secretary, executive director, assistant executive director, or deputy executive director of each state department, commission, board, or council; unless otherwise provided, the division director, assistant division director, deputy director, bureau chief, and assistant bureau chief of any state department or division; or any person having the power normally conferred upon such persons, by whatever title.

As the Department of Transportation is not structured on the department-division-bureau model, it is necessary to determine whether, in your position, you have the power normally conferred upon persons in any of the positions listed in the above-quoted provision.

We note first of all that the statute specifically includes each appointed secretary, assistant secretary, and deputy secretary of each state department in the definition of "specified employee." Thus, the Secretary of the Department of Transportation, the Assistant Secretary for Planning and Engineering, the Assistant Secretary for Finance and Administration, and the Assistant Secretary for District Operations are required to file financial disclosure. See Section 20.23(1)(a)1 and (3)(c), Florida Statutes (Supp. 1990). In narrowing down the possibilities, therefore, the question becomes whether your position is the equivalent of a division director, assistant division director, deputy director, bureau chief, or assistant bureau chief.

The organizational structure of state agencies contained in Chapter 20, Florida Statutes, provides that a division is the principal unit of a department, a bureau is the principal unit of a division, and a section is the principal unit of a bureau. Section 20.04(3), Florida Statutes. However, with regard to the Department of Transportation, eight offices are established and headed by managers classified at a level equal to a division director pursuant to Section 20.23(3)(d)2, Florida Statutes. One of those eight established offices includes the Office of Design where you are employed. We are advised that the Office of Design is further divided into seven units, with the Roadway Design Office as one of those seven units. Further, the Roadway Design Office is divided into eight units, and the unit where you are employed, CADD Operations, is one of those eight units. Additionally, CADD Operations is further divided into two subunits, CADD Support and Software Development. Your position appears to be entirely responsible for Software Development. If the Office of Design is the equivalent of a division, then we are of the view that the seven units within that office are each the equivalent of a bureau. It further appears that if the Roadway Design Office is the equivalent of a bureau, then there are eight sections within that bureau, including CADD Operations. Further, CADD Operations is divided into two subsections, CADD Support and Software Development, with your position responsible for administering the Software Development unit. Thus, while you evidently exercise considerable authority in your position with the Department, there is no basis to conclude that your position is the equivalent of an assistant bureau chief within that organization. At most, your position is the equivalent of a section administrator, and there is no language in Section 112.3145(1)(b)3, Florida Statutes, which mandates disclosure by section administrators.

You have pointed out that your position description indicates that your position does not have financial disclosure responsibility, even though the Department's Financial Disclosure Coordinator indicated that you must file because your position is the equivalent of an assistant bureau chief. We are advised by the Department that this section of the position description was developed for Department use only and has not been consistently or correctly utilized by those managers preparing position descriptions for Department employees. The Financial Disclosure Coordinator also suggested to our staff that you should be required to disclose because your position as a Professional Engineer Administrator is a Pay Grade 30, the highest pay grade available under the State Career Service System. We note that the only basis for determining whether an employee is a "specified state employee" pursuant to Section 112.3145(1)(b)3, Florida Statutes, is whether they hold one of the positions listed by statute, or whether they exercise the "power normally conferred upon such persons, by whatever title." It would be inappropriate to conclude that an employee must file financial disclosure because of their level of compensation. Therefore, it was necessary to review the structure of the Department of Transportation to determine whether your position was the equivalent of an assistant bureau chief, or whether you exercise the power normally conferred by persons in the position of an assistant bureau chief.

Accordingly, as your position with the Department of Transportation is the equivalent of a section administrator, we find that you are not a "specified state employee" subject to the requirement of filing a statement of financial interests annually. We would suggest that the Department review its written position descriptions to ensure that employees are appropriately classified and subsequently notified as to whether they are required to file financial disclosure statements.