CEO 88-55 -- September 8, 1988

FINANCIAL DISCLOSURE

APPLICABILITY OF DISCLOSURE LAW TO

MEMBERS OF LOCAL EMERGENCY PLANNING COMMITTEES

To: Mr. Thomas G. Pelham, Chairman, State Emergency Response Commission, Tallahassee

SUMMARY:

Members of local emergency planning committees are "local officers" subject to the requirement of filing statements of financial interests annually under Section 112.3145, Florida Statutes, as the committees' powers and duties are not solely advisory. CEO 87-75 is referenced.

QUESTION:

Are the members of Local Emergency Planning Committees "local officers" subject to the requirement of filing statements 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" should file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes (1987). The term "local officer" is defined to mean:

Any appointed member of a board, commission, authority, including any expressway authority or transportation authority established by general law; 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 (1987).]

In turn, "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 (1987).]

Therefore, an appointed member of an "advisory body" as defined above is not required to file a statement of financial interests annually unless that body has land planning, zoning, or natural resources responsibilities.

In your letter of inquiry you advise that Local Emergency Planning Committees were established pursuant to the Federal Emergency Planning and Community Right-to-Know Act of 1986. This federal act, which creates a federal-state hazardous materials program, requires each state to perform certain functions, including the establishment of a State Emergency Response Commission. This Commission designates local emergency planning districts and appoints members to a local emergency planning committee for each such district. Committee members serve without compensation at the pleasure of the Commission. The Department advises that staff and administrative support for the State Committees will be provided by Regional Planning Councils under contract with the Department.

You further advise that the principal function of these Committees is to prepare emergency response plans and to make certain information available to the public. You state that the Committees' functions relating to emergency plans appear to be advisory, as the Committees are subject to supervision of the State Emergency Response Commission and the emergency plans themselves are not binding but are used by the Department of Community Affairs in preparing the comprehensive emergency management plan pursuant to Section 252.35(2)(b), Florida Statutes. You also state that the Committees' functions relating to the public availability of information are purely routine and ministerial except in one rather limited type of case where they have authorization to request certain information with respect to a hazardous chemical from a facility owner or operator on behalf of an individual.

According to the Federal Act, the Commission is required to review a Committee's emergency plan and make recommendations to the Committee on revisions of the plan that may be necessary to ensure the coordination of the plan with the emergency responses plans of other emergency planning districts. The law states that such review should not delay implementation of the plan to the maximum extent practicable. The Department advises that while the language contained in the Act seems to imply that the plan is to have a binding effect, such a reading would be incorrect since neither a Committee nor any other agency or authority is given the power to enforce the plan.

In the context of the State's emergency management scheme, implementation of a local emergency response plan may occur in one of several ways. The most direct method of implementation of a plan is by means of a process initiated by the adoption of the plan by a county emergency management agency for inclusion in the local emergency management plan in accordance with Section 9G-6.004, F.A.C. The plan then is reviewed by the Division of Emergency Management of the Department in accordance with Sections 9G-6.005 and 9G-6.006, F.A.C. and is adopted by resolution of the county government pursuant to Section 9G-6.007, F.A.C. A local emergency response plan also may be adopted by the Division for inclusion in the State comprehensive emergency management plan. In any case, the plan has no binding effect until it is adopted by another unit of government. Nothing in the applicable Federal or State law provides for mandatory compliance with local emergency response plans; no penalties or consequences of any kind are provided for failure to comply with a plan; and an examination of the minimum required contents of the plans shows that the plans may be totally descriptive and without prescriptive content or effect.

In our view, the powers and authority of the Committees as they relate to the emergency plans could be considered to be of an advisory nature. We previously have advised that a body performs a solely advisory function when it has been granted only the authority to review a situation and render its advice to another body which is authorized to make the final decision. See CEO 87-75. However, the Committees are authorized to commence litigation in certain instances. The Federal Act provides concurrent authority to the Commission and the Committees to initiate a civil action against an owner or operator of a facility for failure to provide certain information. Recent legislation (CS/CS/CS SB 954) would authorize such actions in State courts. The Department has advised that the Committees do not have the staff or resources to undertake these types of actions. Also, the Commission would have the authorization to direct the Committees not to initiate litigation without the prior approval of the Commission. Nonetheless, we are of the opinion that the Committees' authority to litigate is inconsistent with that which is contemplated by the definition of "advisory body" within Section 112.312(1), Florida Statutes. The law requires an analysis of the powers, jurisdiction, and authority of a body rather than a determination based upon that body's ability to exercise those functions as a practical matter.

Accordingly, we find that members of the Local Emergency Planning Committees are "local officers" and therefore are subject to the requirement of filing statements of financial interests annually under Section 112.3145, Florida Statutes.