CEO 97-01 -- January 23, 1997

CEO 97-1 -- January 23, 1997

FINANCIAL DISCLOSURE

APPLICABILITY OF FINANCIAL DISCLOSURE LAW

TO MEMBERS OF COUNTY LAND ACQUISITION COMMITTEE

To: Mr. James G. Yaeger, Lee County Attorney (Fort Myers)

SUMMARY:

A county land acquisition and stewardship committee has "natural resources responsibilities," thus is not an "advisory body," and therefore its members are "local officers" required to file financial disclosure as specified in Section 112.3145, Florida Statutes. CEO 81-16 is referenced and CEO 86-25 is distinguished.

QUESTION:

Is the Lee County Conservation Lands Acquisition and Stewardship Committee an "advisory body" under Section 112.312(1), Florida Statutes, such that its members are not "local officers" required to file financial disclosure under Section 112.3145, Florida Statutes?

Your question is answered in the negative.

By your letter of inquiry, we are advised that Lee County is implementing an environmental land acquisition program to acquire numerous parcels County-wide from willing sellers. To assist in implementing the program, you advise further, the Board of County Commissioners (hereinafter "Board") established by ordinance a fifteen-member Land Committee (hereinafter "Committee").

You advise that the Committee is to provide recommendations to the Board and perform certain functions for final approval by the Board in order to assist the County in meeting its land acquisition and maintenance objective. Further, you emphasize that it is the intent of the County that the program input and plans of the Committee be solely advisory, with all final actions and approvals of Committee recommendations being made by the Board. Also, you advise that the Committee will not have a budget within the meaning of Section 112.312(1), Florida Statutes, that it will not make any final determination of property rights or obligations, and that all expenditures of funds will be approved by the Board and expended by County personnel in the normal course of County business.

The ordinance creating the Committee[1] provides in part:

WHEREAS, the Board of County Commissioners recognizes the need for the creation of an advisory committee in order to advise the county and public in the implementation of the program . . . .

The Board of County Commissioners hereby creates and establishes the Conservation Lands Acquisition and Stewardship Committee, hereinafter called 'The Land Committee.'

The 'Land Committee' will advise and provide recommendations to the Board concerning the county's environmentally critical or sensitive land purchase and improvement program, 'The Land Program.' Upon formation of the Land Committee, the Board, with input from the committee, shall establish reasonable rules, guidelines and milestones in order for the committee to meet its objectives and duties as provided herein.

Further, the ordinance provides that the Committee will perform the following functions:

A. Review and provide recommendations concerning the County's levy of millage and use of ad valorem funds in order to finance and implement The Land Program.

B. Establish the parameters of The Land Program to include, but not limited to, criteria for land purchases, procedures to implement the program, and process for ranking purchase projects. The Land Program parameters will be confirmed by the Board by subsequent Resolution.

C. Develop for Board approval by Resolution, a Property Acquisition Map depicting areas for purchase and specific properties which can be purchased from willing sellers. The Land Acquisition Map and priorities for purchase will be reviewed and updated periodically, but at a minimum on an annual basis.

D. Establish the parameters of a trust fund for land management, restoration and creation of public access for potential recreational use of acquired properties.

E. Review established Land Program criteria and guidelines and provide recommendations for amendments and/or modifications to The Land Program that serve to enhance the effective operation of same.

F. Provide periodic input and updates on the implementation and operation of The Land Program, to include but not limited to land purchase status, expenditures and availability of funds.

G. Disseminate to and coordinate with Lee County local governments, potentially affected property owners and the general public by public hearing or otherwise, information concerning the program guidelines and the rationale for parcel selection.

H. Coordinate with and assist as necessary Lee County staff in acquiring and managing the program lands.

I. Offer amendments and/or modifications to this ordinance as necessary to effectively and successfully implement the program.

The Code of Ethics for Public Officers and Employees provides in relevant part:

'Local officer' means 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.]

Each state or local officer and each specified state employee shall file a statement of financial interests no later than July 1 of each year. Each state or local officer who is appointed and each specified state employee who is employed shall file a statement of financial interests within 30 days from the date of appointment or, in the case of a specified state employee, from the date on which the employment begins, except that any person whose appointment is subject to confirmation by the Senate shall file prior to confirmation hearings or within 30 days from the date of appointment, whichever comes first. [Section 112.3145(2)(b), Florida Statutes.]

'Advisory body' means 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.]

Persons who are "local officers" based upon their being appointed members of boards are required to file certain disclosures, including Statements of Financial Interests (CE Form 1's), with the applicable supervisor of elections at the times specified in the statute, unless the board on which they serve is an "advisory body."

Under your inquiry, whether the Committee is an "advisory body" is dependent on whether it has "natural resources responsibilities."[2] In CEO 81-16, our seminal opinion enunciating the meaning of "natural resources responsibilities,"[3] we stated that "[i]f a board has a duty to act, or is obligated to take some action, the board has 'responsibilities,' even though its action may consist merely of providing an advisory recommendation," that "if a board has been delegated the responsibility (duty) of playing a role in a permitting, planning, or other type of process relating to natural resources, then that board would have 'natural resources responsibilities,'" and that in such a situation "the board's recommendation would be a condition precedent to final governmental action. "Further, in that opinion, we went on to state that "if a board has been given the authority only to review generally some natural resource matter, to formulate policy recommendations, and to present its advice to a superior board or officer, the board would not have 'natural resources responsibilities,'" such a board "hav[ing] no duty to take action in any particular matter."

Applying the factors established in CEO 81-16, we find that the Committee has "natural resources responsibilities" and thus that it is not an "advisory body."It is evident from an examination of the County ordinance which creates the Committee and which concerns the County's environmental lands program that the Committee has duties or responsibilities, including the rendering of advice, which are necessary under the program. Notwithstanding that the County Commission will make the final decision on many, if not all, measures or issues under the program, it is apparent from the ordinance that the program cannot go forward without the operation of the Committee.[4]

Accordingly, we find that the members of the Committee are "local officers" subject to filing financial disclosure under Section 112.3145, Florida Statutes.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 23, 1997, and RENDERED this 28th day of January, 1997.

__________________________

Mary Alice Phelan

Chair

[2] The natural resources responsibilities inquiry appears to be definitive, as you have represented to us that the Committee has neither a budget nor final determination/adjudication authority within the meaning of Section 112.312(1).

[3] Prior to CEO 81-16, we held a view which would have found "natural resources responsibilities" to exist in a broader range of public bodies.

[4] CEO 86-25, in which we found that the land selection committee of the South Florida Water Management District did not have "natural resources responsibilities," is distinguished. In that opinion, the committee only had a general review authority, and the District's governing board had the authority to review projects not recommended by the committee.