CEO 78-95 -- December 21, 1978

FULL AND PUBLIC DISCLOSURE OF FINANCIAL INTERESTS

DISCLOSURE OF TRUST ASSETS AND LIABILITIES BY TRUSTEE

To: (Name withheld at the person's request.)

Prepared by: Phil Claypool

SUMMARY:

The Sunshine Amendment, in s. 8(h)(1), Art. II, State Const., provides that full and public disclosure of financial interests means the filing of a sworn statement "identifying each asset and liability in excess of $1000 and its value." Reference is made to CEO 78-1, in which it was advised that one's property will constitute an "asset" if it can be sold to be applied to the payment of one's debts. Where one holds as a trustee certain property and loan obligations, they do not constitute personal assets and liabilities as the legal title and estate of a trustee generally are not liable to attachment or to execution for payment of his private obligations, and the liabilities are not personal debts for which the trustee is personally responsible. Accordingly, in making full and public disclosure of financial interests as a candidate for elective constitutional office, such trustee is not required to disclose as assets and liabilities property owned as a trustee or debts incurred as a trustee.

QUESTION:

In making full and public disclosure of financial interests pursuant to s. 8, Art. II, State Const., are you required to disclose as assets and liabilities property owned by yourself as a trustee and liabilities incurred as a trustee?

Your question is answered in the negative.

In your letter of inquiry you advise that in filing full financial disclosure under s. 8, Art. II, State Const., as a candidate for the Florida House of Representatives, ____, you did not list as assets property held by you and two of your law partners as trustees or, as liabilities, loan obligations incurred as trustees. You also advise that, as one of three trustees, you have no personal ownership interest in the trust property and that you are bound by the trust instrument and trust laws in regard to any transfer or other disposition of this property, as well as in incurring loan obligations against the property.

The Sunshine Amendment, in s. 8(h)(1), Art. II, State Const., provides that full and public disclosure of financial interests means the filing of a sworn statement "identifying each asset and liability in excess of $1,000 and its value." In our opinion, the trust property and loan obligations to which you have referred do not constitute assets or liabilities which must be disclosed under the Sunshine Amendment.

We have previously advised that one's property will constitute an "asset" if it can be sold to be applied to the payment of one's debts. See CEO 78-1. As a trustee, you have a legal interest in the property of the trust but not an equitable or beneficial interest in the property. The legal title and estate of a trustee generally are not liable to attachment or to execution for the payment of his private debts and obligations. 33 Fla. Jur. Trusts s. 31 (1960). Therefore, the trust property is not one of your "assets." Similarly, liabilities you have incurred as a trustee are not personal liabilities for which you are personally responsible.

Accordingly, we are of the opinion that in making full and public disclosure of financial interests pursuant to s. 8, Art. II, State Const., you are not required to disclose as assets and liabilities property owned as a trustee and debts incurred as a trustee.

Please be advised that opinions of this commission which relate to s. 8, Art. II of the State Constitution are strictly advisory in nature; such opinions lack the legally binding effect of our opinions interpreting the Code of Ethics for Public Officers and Employees under s. 112.322(3)(b), F. S.