APPLICABILITY OF FINANCIAL DISCLOSURE LAW
TO SUSPENDED CITY COMMISSIONER
To: Name withheld at person's request (Miami)
A suspended city commissioner is subject to the annual financial disclosure requirement while suspended from office. Suspension by the Governor pursuant to Article IV, Section 7, Florida Constitution, and Section 112.51, Florida Statutes, is an interruption in the holding of office but not a removal from office. Therefore, the public official under suspension continues to be obligated to file annual financial disclosure.
Is a City Commissioner still subject to the annual financial disclosure requirement even after being suspended from office?
Your question is answered in the affirmative.
In your letter of inquiry, you explain that this opinion is sought on behalf of …, an elected member of the Miami City Commission. You write that on December 2, 2009, the Commissioner was charged with grand theft, and on January 15, 2010, the Governor entered an executive order (Executive Order Number 10-05) suspending her from office. Additional criminal charges against her were brought by indictment on March 3, 20101. You ask whether she is still required to file the annual financial disclosure statement—2009 CE Form 1—even though she is suspended from office.
Article IV, Section 7(c), Florida Constitution, recognizes that suspension from office is an interruption but not removal. It provides:
By order of the governor any elected municipal officer indicted for crime may be suspended from office until acquitted and the office filled by appointment for the period of suspension, not to extend beyond the term, unless these powers are vested elsewhere by law or the municipal charter. [e.s.]
Section 112.51(5), Florida Statutes, indicates that if the municipal officer is convicted, the official can then be removed by the Governor. Section 112.51(6), Florida Statutes, recognizes that suspended municipal officers can be reinstated to office if they are acquitted, found not guilty, or otherwise cleared of the charges upon which they were arrested.
In CEO 93-26, we opined that the Code of Ethics remained applicable to a suspended electric authority employee. There, we stated:
As suspension of a public employee from office is not permanent and embraces the assumption that he will resume his duties at a future date, the Code of Ethics remains applicable to him during his period of suspension. Temporary suspension represents not a termination of public duty but rather an interstice which requires that in order to insure that conduct violative of the Code of Ethics not accompany the employee upon his resumption of public duties, the Code remain applicable to him during the period of his suspension.
CEO 93-26 cited to CEO 76-150, involving a suspended police chief. In that opinion, we noted:
For purposes of the Code of Ethics, interstices in ongoing employment do not exempt one from provisions of the Code of Ethics, for such exemption would afford opportunities for evasion of the law through manipulation of pay periods, termination dates, etc.
This concept—that suspension is not permanent and that the public official may resume his/her public duties at a future date—has also been expressed in a financial disclosure appeal brought pursuant to Section 112.3144(5)(e), Florida Statutes. In that case2, we found that even though a county commissioner had been suspended from office in March 2006, was acquitted and then reinstated in April 2008, she had not been removed from office. Thus, we concluded that she continued to be subject to financial disclosure during the period of her suspension but waived her fine, finding a 25-month suspension to be an "unusual circumstance."
Accordingly, we find that a public official who has been suspended from office but has neither resigned nor been removed from office is required to file financial disclosure during the period of suspension.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 3, 2010 and RENDERED this 8th day of September, 2010.
Roy Rogers, Chairman
Executive Order Number 10-05 was subsequently ratified and reaffirmed by Executive Order Number 10-61 to reflect the indictments filed on March 3, 2010.
In re CHRISTY FITZGERALD, COE Final Order No. 08-149 (June 2008)
For the same reason, a public official who is a "reporting individual" for purposes of the "gift" law (Section 112.3148, Florida Statutes), would continue to be subject to the gift prohibitions and disclosure requirements while suspended from office.