CEO 75-28 -- February 21, 1975

DEPUTY DIRECTOR

APPLICABILITY OF FINANCIAL DISCLOSURE PROVISIONS

To: Roland J. Baggett, Deputy Director of Administration, Department of Transportation, Tallahassee

Prepared by: Gene L. "Hal" Johnson

SUMMARY:

Categories of persons considered public officers are specifically identified within the definition of that term as given in s. 112.312(7)(f), F. S., as amended by Ch. 74-177, Laws of Florida. In the absence of such specific mention, the Deputy Director of Administration, Department of Transportation, is not a public officer for purposes of the law. However, standards of conduct set forth in s. 112.313, F. S., apply to public officers and to employees of agencies. Since the Division of Administration is within the meaning of the term "agency" as defined in s. 112.312(1), F. S., Mr. Baggett is an employee of an agency subject to standards of conduct provisions set forth in s. 112.313, F. S., particularly disclosure of conflicts of interest.

QUESTIONS:

1. Am I, a Deputy Director of Administration in the Department of Transportation, a public officer within the definition of that term as used in part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure provisions as applied to public officers?

2. Am I, as Deputy Director of Administration in the Department of Transportation, an employee of an agency within the meaning of part III, Ch. 112, supra, and therefore subject to the disclosure provisions as applied to employees of agencies?

Question 1 is answered in the negative.

The definition of the term "public officer" includes:

The appointed secretaries, assistant secretaries, deputy secretaries, executive directors, assistant executive directors, and deputy executive directors of all state departments and, unless otherwise provided, the division directors and bureau chiefs of all departments of state government. [Section 112.312(7)(f), supra.]

If the Legislature had intended deputy directors of divisions to be deemed public officers under this act, it could easily have included them within the statutory definition of that term. However, by expressly stating that deputy secretaries and deputy executive directors of all state departments are public officers for the purposes of this act, other deputies of all state departments are implicitly excluded from the definition of the term "public officer." Accordingly, it is our opinion that you, as Deputy Director of Administration in the Department of Transportation are not a public officer as defined in s. 112.312(7), supra. Therefore, you are not subject to the disclosure provisions relating to public officers.

Question 2 is answered in the affirmative.

The standards of conduct set forth in s. 112.313, supra, apply to both public officers and employees of agencies. As used in this act, "agency" means:

. . . any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department, division, bureau, commission, authority . . . . [Section 112.312(1), supra.]

The Division of Administration clearly falls within this definition of the term "agency." Thus, the Deputy Director of Administration in the Department of Transportation, as an employee of a state agency, must comply with the standards of conduct set forth in s. 112.313, supra.

The disclosure provisions of s. 112.313, supra, state in part:

If a public officer or employee of an agency is an officer, director, partner, proprietor, associate or general agent (other than a resident agent solely for service of process) of, or owns a material interest in, any business entity which is granted a privilege to operate, or is doing business with an agency of which he is an officer or employee, he shall file a statement disclosing such facts within forty-five days of becoming an officer or employee or within forty-five (45) days of the acquisition of such position or of such material interest.

If applicable, the deputy director must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is to be filed only if you have the type of interests or business conflicts described by s. 112.313(3), supra. CE Form 3 is not required to be filed if the response to each question therein would be "none" or "not applicable." See CEO 74-2.

We emphasize that this opinion is based only on the factual situation which you have stated in your request for an official opinion. Therefore, we have not addressed the possibility that you may be a public officer by virtue of having purchasing agent powers or by accepting compensation for consultations with other state agencies under provisions of paragraphs (h) and (j) of s. 112.312(7), F. S.