CEO 13-6 - June 12, 2013
FORMER MEMBER OF BOARD OF TRUSTEES
FOR SOUTHWOOD SHARED RESOURCE CENTER
To: Name withheld at person's request (Tallahassee)
The former At-Large member of the Board of Directors for the Southwood Shared Resource Center is subject to the two-year post-officeholding restriction in Section 112.313(9)(a)3., Florida Statutes, even though he was not "appointed" to the Board of Trustees but selected by other members of the Board pursuant to a process set forth in Section 282.203(2)(a)4.e., Florida Statutes, and the Board of Trustees' Operating Procedures. CEO 02-15 and CEO 83-69 are referenced.
Are you, a former member of the Board of Trustees for the Southwood Shared Resource Center, prohibited by Section 112.313(9)(a)3., Florida Statutes, from representing a client before the Southwood Shared Resource Center for two years, where you were not appointed to the Board but were selected by the other members of the Board to fill the "At-Large" position?
Your question is answered in the affirmative.
Through your initial inquiry and communications with our staff, we are advised that you recently separated from State employment. At the time of your separation, you were the IT Director for the Florida Fish and Wildlife Conservation Commission, and you also served as the "At-Large" member of the Board of Trustees for the Southwood Shared Resource Center (SSRC). You ask whether the post-officeholding provision in Section 112.313(9)(a)3., Florida Statutes, would prohibit you from representing another person or entity for compensation before the SSRC for a period of two years, since you were not "appointed" to the SSRC but were selected by the other members of the Board of Trustees to fill the "At-Large" position pursuant to a process outlined in Section 282.203(2)(a)4.e., Florida Statutes, and the Board of Trustees' Operating Procedures.
According to its website,1 the SSRC is a shared-use, state-of-the-art primary data center facility owned and operated by the State of Florida with oversight from its Board of Trustees. The SSRC was created by law in 2008 as a separate entity, and identified as the first primary data center for the state. The SSRC provides its clients with the latest in security, redundancy and connectivity, and is dedicated to providing safe, secure housing for data-processing equipment and applications. It is staffed around-the-clock and currently supports over 50 agencies, boards, commissions and municipalities with various data-processing and technology services.
Section 282.203(2), Florida Statutes, describes the make-up of the Board of Trustees:
BOARD OF TRUSTEES.-Each primary data center shall be headed by a board of trustees as defined in s. 20.03.
(a) The members of the board shall be appointed by the agency head or chief executive officer of the representative customer entities of the primary data center and serve at the pleasure of the appointing customer entity. Each agency head or chief executive officer may appoint an alternate member for each board member appointed pursuant to this subsection.
1. During the first fiscal year that a state agency is to consolidate its data center operations to a primary data center and for the following full fiscal year, the agency shall have a single trustee having one vote on the board of the state primary data center where it is to consolidate, unless it is entitled in the second year to a greater number of votes as provided in subparagraph 3.
2. Board membership shall be as provided in subparagraph 3. based on the most recent estimate of customer entity usage rates for the prior year and a projection of usage rates for the first 9 months of the next fiscal year. Such calculation must be completed before the annual budget meeting held before the beginning of the next fiscal year so that any decision to add or remove board members can be voted on at the budget meeting and become effective on July 1 of the subsequent fiscal year.
3. Each customer entity that has a projected usage rate of 4 percent or greater during the fiscal operating year of the primary data center shall have one trustee on the board.
4. The total number of votes for each trustee shall be apportioned as follows:
a. Customer entities of a primary data center whose usage rate represents 4 but less than 15 percent of total usage shall have one vote.
b. Customer entities of a primary data center whose usage rate represents 15 but less than 30 percent of total usage shall have two votes.
c. Customer entities of a primary data center whose usage rate represents 30 but less than 50 percent of total usage shall have three votes.
d. A customer entity of a primary data center whose usage rate represents 50 percent or more of total usage shall have four votes.
e. A single trustee having one vote shall represent those customer entities that represent less than 4 percent of the total usage. The trustee shall be selected by a process determined by the board.
(b) Before July 1 of each year, each board of trustees of a primary data center shall elect a chair and a vice chair to a term of 1 year or until a successor is elected. The vice chair shall serve in the absence of the chair. The chair may be elected to serve one additional successive term.
(c) Members of the board representing customer entities who fail to timely pay for data center services do not have voting rights.
(d) A majority of the members constitutes a quorum. The board shall take action by a majority vote of the members if a quorum is present. If there is a tie, the chair shall be on the prevailing side.
(e) The executive director of the Agency for Enterprise Information Technology shall be the advisor to the board.
(f) To facilitate planned data center consolidations, board membership may be adjusted as provided in the General Appropriations Act. [emphasis supplied.]
The emboldened language describes the "At-Large" member of the Board of Trustees-the position you actually held-and the Operating Procedures for the SSRC Board of Trustees2 describes how the position is filled:
Article I - Membership
Section 101 - Board Membership
. . .
(b) The At-Large position shall be elected by the Board as follows. The Board shall request nominations from representative agency heads. Upon receiving nominations, the Board will conduct public interviews of nominees. Upon completion of public interviews, the Board shall select a candidate by majority vote. If more than two nominees are interviewed, the voting may require a run-off vote if a majority is not received by a single candidate. The At-Large member will select a substitute or alternate for the At-Large position and submit that person's name and credentials to the representative agencies for approval. . . . .
Since the Board of Trustees actually selects the At-Large member, the issue is whether you are an "appointed state officer" for purposes of Section 112.313(9)(a)2.b., which defines that term to mean
any member of an appointive board, commission, committee, council, or authority of the executive or legislative branch of state government whose powers, jurisdiction, and authority are not solely advisory and include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relative to its internal operations.
Although you were selected by the other members of the Board of Trustees to fill the "At-Large" position, we believe that you would be considered to be an "appointed state officer" for purposes of Section 112.313(9)(a)3., Florida Statutes, which provides:
No member of the Legislature, appointed state officer, or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of 2 years following vacation of office. . . . . [emphasis supplied.]
We can see no reason to distinguish between the "At-Large" member and the other members of the SSRC Board of Trustees as it relates to the post-officeholding restriction. See CEO 02-15, where we opined that members of the Florida Space Industry Committee were "public officers," notwithstanding that they had been chosen pursuant to their by-laws and not via gubernatorial appointment or another more traditional method of appointment; and CEO 83-69, where we concluded that two members of a municipal golf commission who were elected to the commission by persons holding annual membership cards for the municipal golf course, as well as the one member who was selected by the other four members, all were considered to be "appointed" members of a commission for purposes of the financial disclosure law.
Accordingly, notwithstanding the manner in which you were selected to serve on the Southwood Shared Resource Center's Board of Trustees, we believe that you were an "appointed state officer" and thus subject to the post-officeholding restriction in Section 112.313(9)(a)3., Florida Statutes.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 7, 2013, and RENDERED this 12th day of June, 2013.
Susan Horovitz Maurer, Chair