CEO 97-18 -- October 16, 1997
FINANCIAL DISCLOSURE
APPLICABILITY OF FINANCIAL DISCLOSURE LAW
TO CORRECTIONAL ASSISTANT SUPERINTENDENT
AT DOC CORRECTIONAL FACILITY
To: L. R. Johnson, Assistant Superintendent, Department of Corrections (Starke)
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. Because the Assistant Superintendent of the Florida State Prison is not a "specified state employee" under either Section 112.3145(1)(b) 4 or (1)(b)5, Florida Statutes, it must be determined whether he should be considered a "specified state employee" under Section 112.3145(1)(b)(3), which defines the term 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 Corrections is not structured on the department-division-bureau model, a comparison of DOC position descriptions with those positions enumerated in the Code of Ethics is necessary in order to determine the applicability of the financial disclosure law.
Because the directors of each of the six offices created in DOC's five regions under Section 20.315(4)(b), Florida Statutes, are classified at the level of division director and are answerable to the Regional Director, and because the superintendents of the various correctional facilities in Region II likewise are answerable directly to the Region II Director, the superintendents' positions also should be classified at the level of division director or at least, as a bureau chief and the assistant superintendents at the assistant division director level or assistant bureau chief level. As such, a Correctional Assistant Superintendent, is a "specified state employee" subject to the requirement of filing a statement of financial interests annually.
QUESTION:
Are you, a Correctional Assistant Superintendent of a Department of Corrections institution, a "specified employee" subject to the requirement of filing a statement of financial interests annually?
Your question is answered in the affirmative.
In your letter of inquiry you indicate that you are an Assistant Superintendent at a large correctional or penal institution operated by the Department of Corrections ("DOC"). You inquire whether you must file a Statement of Financial Interests (CE Form 1), as a "specified state employee" a defined in Section 112.3145(1)(b), Florida Statutes.
Included with the copy of the Career Service Class Specification for Correctional Assistant Superintendent II, which you provided with your letter of inquiry, is a copy of a memorandum from the DOC Assistant Secretary for Executive Services in which he provides a list containing the "class titles of state officers and specified state employees" in the Department. The memorandum indicates that the list includes classes specifically directed by statute [Section 112.3145, Florida Statutes] to file financial disclosure as well as those having "delegated authority." It indicates that the position of Assistant Superintendent is included because "employees in these positions act in an authority capacity during the absence of the Superintendent."
Your written position description, which you provided at our staff's request, indicates that, as Correctional Assistant Superintendent II, you are responsible for "directing, supervising, planning and coordinating all activities of the O Unit at the Florida State Prison." However, in a conversation with our staff, you indicated that you do not have the power or authority, even in the Superintendent's absence, to make or authorize any purchases exceeding $1,000. While you have the authority to requisition items, you advise, purchasing authority for items exceeding $1,000 resides in your correctional facility's business manager or purchasing agent, Superintendent, and in his absence in DOC's Region II Director.
The term "specified state employee" is defined in relevant part at Section 112.3145(1)(b), Florida Statutes, to include the following:
3. 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.
4. The superintendent or institute director of a state mental health institute established for training and research in the mental health field or the superintendent or director of any major state institution or facility established for corrections, training, treatment, or rehabilitation.
5. Business managers, purchasing agents having the power to make any purchase exceeding $1,000, finance and accounting directors, personnel officers, or grants coordinators for any state agency.
For purposes of this provision, a "purchasing agent" is defined at Section 112.312(20) to mean
a public officer or employee having the authority to commit the expenditure of public funds through a contract for, or the purchase of, any goods, services, or interest in real property for an agency, as opposed to the authority to request or requisition a contract or purchase by another person.
Clearly, while a Superintendent of a Correctional Institution is a "specified state employee" required to file financial disclosure under Section 112.3145(1)(b)4, Florida Statutes, we are of the opinion that the same cannot be said of a Correctional Assistant Superintendent unless he or she is considered to be in a position equivalent to a division director, deputy director, bureau chief, or assistant bureau chief of a State department or unless he or she has the power normally conferred upon such persons, by whatever title (See CEO 78-50, CEO 91-2, and CEO 91-73) under Section 112.3145(1)(b)3, Florida Statutes. Because you have indicated that, even in the Superintendent's absence, you do not have the power to make or authorize any purchases exceeding $1,000, we also are of the opinion that you are not a "specified employee" under Section 112.3145(1)(b)5, Florida Statutes, as a "purchasing agent." While you have the authority to requisition items, purchasing authority for items exceeding $1,000 resides in the Florida State Prison's business manager or purchasing agent[1], Superintendent, and in his absence, in DOC's Region II Director.
We noted in CEO 91-73 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 he or she holds one of the positions listed in the statute, or whether he or she exercises the "power normally conferred upon such persons, by whatever title." Section 112.3145(1)(b)3 specifically includes each appointed secretary, assistant secretary, deputy secretary, division director, assistant division director, deputy director, bureau chief, and assistant bureau chief of each state department in the definition of "specified employee."Inasmuch as you are not any of these, and DOC is not structured on the department, division, bureau model, it is necessary for us to determine whether in your position you have the power normally conferred upon persons in any of the positions listed above.
The DOC apparently went through reorganization in 1996. See Section 20.315, Florida Statutes (Supp. 1996). Apart from giving the Secretary of DOC the authority to appoint a deputy secretary, a general counsel, an inspector general, and six (6) assistant secretaries, the statute provides that DOC shall plan and administer its program of services through a maximum of five (5) regional offices headed by regional directors appointed by the Secretary. Each regional director is required, with the advice and consent of the Secretary, to appoint six offices--Administration, Community Corrections, Executive Services, Security and Institutional Management, Health Care Administration, and Education and Job Training.
Pursuant to Section 20.315(4)(b), Florida Statutes (Supp. 1996), the director of each of the six (6) offices is classified at the level of division director. Our staff also has been advised, and the organizational chart provided by the Department pertaining to Region II and its correctional institutions indicates, that the Superintendent of the Florida State Prison reports directly to the Region II Director. Consequently, we are of the opinion that for purposes of the Code of Ethics the Superintendent's position likewise should be classified at the level of division director or, at the very least, bureau chief, and your position should be classified at the level of an assistant division director or assistant bureau chief.
Accordingly, as we find that your Correctional Assistant Superintendent II position with DOC is the equivalent of an assistant division director or an assistant bureau chief, we find that you are a "specified state employee" subject to the requirement of filing a statement of financial interests annually.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 16, 1997 and RENDERED this 21st day of October, 1997.
__________________________
Kathy Chinoy
Chair
[1] Purchasing Agent I, II, and III, and Purchasing Director I, II, and III are specific Career Service Class titles of Department of Corrections employees.