CEO 74-14 -- October 10, 1974
APPLICABILITY TO ASSISTANT DIRECTOR
OF STATE PLANNING
To: R. G. Whittle, Jr., Assistant Director, Division of State Planning, Tallahassee
Prepared by: Patricia Butler
Within the definition of "public officer" as set forth in s. 112.312(7)(f), F. S., as amended by Ch. 74-177, Laws of Florida, assistants, other than assistant secretaries and assistant executive directors of state departments, are excluded. Mr. Whittle is therefore not within the statutory definition of the term "public officer." However, the Division of State Planning clearly falls within the definition of "agency" as used in s. 112.313, F. S.; Mr. Whittle is therefore an employee of a state agency and must comply with the standards of conduct set forth in s. 112.313, supra. Should Mr. Whittle meet the disclosure provision conditions of s. 112.313(3), supra, he must file CE Form 3. Similarly, were Mr. Whittle to have purchasing agent powers or were he to accept compensation for consultations with other state agencies, he would become subject to provisions required of public officers.
1. Is an assistant director of the Division of Planning a public officer within the definition of s. 112.312, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure law as it applies to public officers?
2. Is an assistant director of the Division of State Planning an employee of an agency within the meaning of part III, Ch. 112, F. S., as amended by Ch. 74-177, Laws of Florida, and therefore subject to the disclosure law as it applies to employees of agencies?
Your question 1 is answered in the negative.
In s. 112.312(7)(f), F. S., as amended by Ch. 74-177, Laws of Florida, the definition of "public officer" includes:
The appointed secretaries, assistant secretaries, deputy secretaries, executive directors, assistant executive directors, and deputy executive directors of all state departments and, unless otherwise provided, the division directors and bureau chiefs of all departments of state government. (Emphasis supplied.)
If the Legislature had intended assistant directors of divisions to be deemed public officers under this act, it could easily have included them within the statutory definition of that term. However, by expressly stating that assistant secretaries and assistant executive directors of all state departments are public officers for the purposes of this act, other assistants of all state departments are implicitly excluded from the definition of public officer. Accordingly, it is our opinion that the Assistant Director of the Division of State Planning is not a public officer as defined in s. 112.312(7), supra. Therefore, he or she is not subject to those disclosure provisions relating to public officers.
Your question 2 is answered in the affirmative.
The standards of conduct in s. 112.313, F. S., apply to both public officers and employees of agencies. As used in this act, "agency" means:
. . . any state, county, local or municipal governmental entity, whether executive, judicial, or legislative, and therein any department, division, bureau, commission, authority. . . . [Section 112.312(1), F. S.]
The Division of State Planning clearly falls within this definition of the term "agency." Thus, the assistant director of the Division of State Planning, as an employee of a state agency, must comply with the standards of conduct set forth in s. 112.313, supra.
The disclosure provisions of s. 112.313(3), supra, state in part:
If a public officer or employee of an agency is an officer, director, partner, proprietor, associate or general agent (other than a resident agent solely for service of process) of, or owns a material interest in, any business entity which is granted a privilege to operate, or is doing business with an agency of which he is an officer or employee, he shall file a statement disclosing such facts within forty five days of becoming an officer or employee or within forty five (45) days of the acquisition of such position or of such material interest. (Emphasis supplied.)
If applicable, the assistant director must file CE Form 3, Disclosure of Conflicts of Interest. It should be noted that this form is only to be filed if the assistant director has the type of interests or business conflicts described by s. 112.313(3), supra. CE Form 3 is not required to be filed if the response to each question therein would be "none" or "not applicable." See CEO 74-2.
We emphasize that this opinion is based only on the factual situation which you have stated in your request for an official opinion. Therefore we have not addressed the possibility that you may be a public officer by virtue of having purchasing agent powers or by accepting compensation for consultations with other state agencies.