CEO 95-15 -- July 13, 1995
APPLICABILITY OF FINANCIAL DISCLOSURE LAW
TO MEMBERS OF COUNTY COMMISSION ON AFFORDABLE HOUSING
To: Mr. Joe Mount, Palm Beach County Attorney (West Palm Beach)
The members of the Palm Beach County Commission on Affordable Housing are not "local officers" subject to the requirement of filing financial disclosure annually under Section 112.3145, Florida Statutes. The Commission is solely advisory and does not have any "land-planning responsibilities," as its recommendations are not part of a permitting or planning process and are not a condition precedent to final governmental action; rather, the Commission only reviews generally affordable housing matters and presents its advice.
Are the members of the Palm Beach County Commission on Affordable Housing "local officers" subject to the requirement of filing statements of financial interests annually?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry you advise that Palm Beach County requested an advisory opinion from this Commission as to whether the financial disclosure law, Section 112.3145, Florida Statutes, applies to members of the Palm Beach County Commission on Affordable Housing. The Commission, created by County Ordinance #93-8, acts as the affordable housing advisory committee required by Chapter 420, Florida Statutes, which allows a county to receive its share of funding under the State Housing Initiatives Program.
The financial disclosure law provides that each "local officer" is required to file a statement of financial interests annually. Section 112.3145(2)(b), Florida Statutes. The term "local officer" is defined to include:
Any appointed member of a board; commission; authority, including any expressway authority or transportation authority established by general law; community college district board of trustees; or council of any political subdivision of the state, excluding any member of an advisory body. A governmental body with land-planning, zoning, or natural resources responsibilities shall not be considered to be an advisory body. [Section 112.3145(1)(a)2, Florida Statutes (1993).]
Concomitantly, the term "advisory body" is defined in Section 112.312(1), Florida Statutes, to mean
any board, commission, committee, council, or authority, however selected, whose total budget, appropriations, or authorized expenditures constitute less than 1 percent of the budget of each agency it serves or $100,000, whichever is less, and whose powers, jurisdiction, and authority are solely advisory and do not include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relating to its internal operations.
We previously have advised that members of city and county housing authorities are required to file disclosure in accordance with Section 112.3145, Florida Statutes. See CEO 77-50 (Question 4), CEO 77-156, CEO 79-54, and CEO 83-12. However, it is apparent from our review of the statutes authorizing the creation of affordable housing advisory commissions (Chapter 420.907, et seq., Florida Statutes) and housing authorities (Chapter 421, et seq., Florida Statutes) that the two types of entities are separate and distinct, with dissimilar areas of authority and responsibility.
Moreover, our review of the Palm Beach County ordinance which established the Palm Beach County Commission on Affordable Housing and of Section 420.9075, Florida Statutes, convinces us that the Commission on Affordable Housing meets the definition of an "advisory body."
First, there is no indication from the information you have provided that the Commission on Affordable Housing's total budget, appropriations, or authorized expenditures constitute more than one percent of the Palm Beach County Board of County Commissioners' annual budget, or $100,000, whichever is less. You advise that while the County Commission has, by ordinance, established a Housing Trust Fund that for fiscal year 1994/95 contained more than $2.8 million dollars, the Commission on Affordable Housing's role in the disbursement of those monies is merely to review and make recommendations to the County Commission. Therefore, the indication is that the Commission on Affordable Housing meets the first criteria for being considered an "advisory body."
Secondly, the Commission on Affordable Housing's responsibilities are solely advisory and do not include the final determination or adjudication of any personal or property rights. Thus, the second of the three criteria are met for the Affordable Housing Commission to be considered an "advisory body."
Thirdly, we must consider whether the Commission on Affordable Housing exercises any land-planning, zoning, or natural resources responsibilities. In this regard, you relate that the Commission on Affordable Housing is charged with reviewing and making recommendations to the Board of County Commissioners on land development regulations and the housing element of the County's comprehensive plan. The Commission on Affordable Housing is also responsible for making recommendations to the Board regarding affordable housing incentives which may address land planning or zoning issues. However, we do not view these responsibilities as constituting an exercise of land-planning responsibilities. In previous opinions we have distinguished between "responsibility" and "duty," such that when an advisory board has been given the authority only to review generally some natural resource or land-planning matter, to formulate policy recommendations, and to present its advice to a superior board or officer, the board would not have "land-planning, zoning, or natural resources responsibilities." See CEO 81-16, CEO 82-84, CEO 84-82 and, most recently, CEO 95-10. This distinction seems applicable here. Further, it does not appear that the Commission on Affordable Housing would have a duty to take action in any particular land-planning or zoning matter.
Therefore, based upon the rationale of these cited opinions, we conclude that the members of the Palm Beach County Commission on Affordable Housing are not "local officers" and are therefore not subject to the requirement of filing statements of financial interests annually. However, as most of the cited opinions point out, even members of advisory bodies are deemed to be "public officers" subject to the standards of conduct contained in Chapter 112, Part III, Florida Statutes.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 13, 1995, and RENDERED this _____ day of July, 1995.
William J. Rish