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Home My WebLink About10-28-2002 Financial Disclosure - Arbor CommitteeBROWN, WARD, SALZMAN & WEISS, P.A. Usher L. Brown' Suzanne D'Agresta° Anthony A. Garganese° Gary S. Salzman" John H. Ward' Jeffrey S. Weiss 'Board Certified Civil Trial Lawyer *Board Certified Business Litigation Lawyer 'Board Certified City, County & Local Government Law Attorneys at Law Offices in Orlando, Kissimmee, Cocoa & Viera October 28, 2002 Sent Via Facsimile & U.S. Mail 407-327-6686 Mr. Ron McLemore City Manager City of Winter Springs 1126 E. State Road 434 Winter Springs, FL Re: Financial Disclosure - Arbor Committee City of Winter Springs - General Our File No.: 1193 Dear Ron: Debra S. Babb Jeffrey P. Buak John U. Biedenharn, Jr. Joseph E. Butch Scott D. Danahy Jennifer A. Michael Todd K. Norman Vincent E. Scarlatos Erin J. O'Leary Of Counsel RECEIVED o C T z 8 20UZ OFF OF THE CITY RINGS At Monday evening's Arbor Committee meeting a question was raised as to whether members of the City of Winter Springs Tree (Arbor) Ordinance Review Advisory Committee ("Arbor Committee") have an obligation to file a financial disclosure statement in accordance with Section 112.3145, Florida Statutes. In addition, one member (Marshall Allen) indicated an unwillingness to serve on the committee if he was required to file such a financial disclosure statement. In short, Section 112.3145, Florida Statutes, is unclear. Pursuant to a recent opinion by the Florida Commission on Ethics (CEO 00-19), one could argue that a committee member is not required to file the financial disclosure statement. However, absent case law, another Commission on Ethics' opinion directly addressing the issue, or a policy established by the City Commission by resolution, the safest and more conservative position would be for each member of the Arbor Committee to file the financial statement. 225 East Robinson Street, Suite 660 • P.O. Box 2873. Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 - Kissimmee (321) 402-0144 • Cocoa & Viera (866) 425-9566 Website: www.orlandolaw.net - Email: firm@orlandolaw.net Ron McLemore, City Manager October 28, 2002 Page 2 Section 112.3145, Florida Statutes, requires any "local officer" as defined therein to provide a disclosure of financial interests not later than July 1 of each year. Section 112.3145(1)(a)2.e., Florida Statutes, includes as a "local officer" any member of "a planning or zoning board, board of adjustment, board of appeals, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen advisory committees, technical coordinating committees, and such other group who only have the power to make recommendations to planning or _zoning boards." (emphasis added). Interpreting this section, the Florida Commission on Ethics has previously opined that advisory committee members to a community redevelopment agency were not required to file the financial statement, even where that committee made recommendations regarding land -planning and zoning. CEO 00-19; see also CEO 01-11. The commission reasoned that Section 112.3145(1)(a)2.e., Florida Statutes, as amended by Chapter2000- 243, Laws of Florida, specifically removed citizen advisory committees to land -planning and zoning agencies from the list of local officers required to file financial disclosures, unless the appointing authority imposes the filing obligation by resolution. In this case, Resolution 2002-24, of the City of Winter Springs City Commission, establishes the Arbor Committee and defines its responsibilities as working with the technical resource team and the legal resource team in reviewing the City's existing Arbor Ordinance and providing recommendations to the City Commission for improving the existing ordinance in order to be consistent with established practices of urban forest management and law. As such, the Arbor Committee serves in an advisory capacity to the City Commission on arguably land -planning issues (land -clearing and tree conservation). Further, the Resolution does not require committee members to file the financial statement. Therefore, similar to the CRA advisory committee identified in CEO 00-19, one could argue that the Arbor Committee members are not required to file the financial statement. However, I would note that CEO 00-19 does not specifically address whether an advising Arbor Committee member appointed by a city commission must file the financial statement. Furthermore, because Section 112.3145(1)(a)2.e., Florida Statutes, is not clearly written, I can not opine with any certainty whether the Arbor Committee is required to file the Form 1 Financial Statement. The beginning of that section states that a member of a planning board having the power to "recommend" land planning and zoning is considered a local officer, while on the other hand, citizen advisory committees who have the power to make "recommendations" to planning orzoning boards are not considered local officers. Thus, it is not clear which advisory board or committee with planning functions must file the Form 1 Financial Statement. Ron McLemore, City Manager October 28, 2002 Page 3 Consequently, absent case law or an opinion from the Commission on Ethics specifically exempting an advisory Arbor Committee member from the financial disclosure requirements, the safest and more conservative position for each member of the Arbor Committee is to file the financial statement with the Supervisor of Elections. By filing the financial statement, the Arbor Committee members can avoid the potential consequences if it is later determined they should have filed and they did not. Failure to file these forms when required by law may result in a fine of $25.00 per day for each day late up to a maximum of $1,500.00, plus additional civil penalties such as impeachment, removal from office, public censure, reprimand and/or a civil penalty not to exceed $10, 000.00. The filing requirement is the personal obligation of each board member. I would appreciate your forwarding this letter to each of them as soon as possible so that they can each determine whether or not they desire to file the financial statement. If you have any questions regarding this letter, please do not hesitate to call me. V t ly yours, Anthony A. Garganese City Attorney AAG/JPB/jf/jd Enclosure: CEO 00-19 cc: Andrea Lorenzo-Luaces, City Clerk (w/encls) F:\Docs\City of Winter Springs\OrdinancesArbor Ordinance\McLemore_ArborCommFinDisclose.wpd Cu VU-IY -- ULAUMI IV, LVVV It CEO 00-19 -- October 10, 2000 ntTp://www.etnics.state.II.us/opinions/00/CEO%2000-01 9.fi FINANCIAL DISCLOSURE ADVISORY COMMITTEES TO COMMUNITY REDEVELOPMENT AGENCY To: William J. Cea, Esquire, (Winter Haven) SUMMARY: As of January 1, 2001--the effective date of Chapter 2000-243, Laws of Florida --advisory committee members to the Winter Haven Community Redevelopment Agency are no longer subject to the financial disclosure requirements of Section 112.3145, Florida Statutes. Chapter 2000-243, Laws of Florida, amended the definition of "local officer" in Section 112.3145, Florida Statutes, to remove appointed members of citizen advisory committees, even where advisory committees to community redevelopment agencies make recommendations regarding land -planning and zoning. QUESTION: Are members of advisory committees to a community redevelopment agency subject to the financial disclosure requirements of Section 112.3145, Florida Statutes, as amended by Chapter 2000-243, Laws of Florida? Your question is answered in the negative. In your letter of inquiry, you explain that the City of Winter Haven has established a Community Redevelopment Agency (CRA) in accordance with the requirements of Chapter 163, Florida Statutes, and that members of the City Commission also serve as the Community Redevelopment Agency Board of Commissioners. The CRA recently established two advisory committees for the purpose of studying redevelopment issues and making recommendations to the CRA for two areas within the City. The redevelopment plan for each area includes issues such as future land use and zoning in conjunction with establishing a framework for community redevelopment. Although the members of the advisory committees are presently required to file financial disclosure under the rationale of CEO 91-35, you question whether recent legislative changes to Section 112.3145, Florida Statutes, will affect this obligation. Section 3 of Chapter 2000-243, Laws of Florida, amends the definition of "local officer" in Section 112.3145(1)(a)2, Florida Statutes, to include: Any appointed member of any of the following boards, councils, commissions, authorities, or other bodies of any county, municipality, school district, independent special district, or other political subdivision of the state: a. The governing body of the political subdivision, if appointed; b. An expressway authority or transportation authority established by general law; c. A community college or junior college district board of trustees; d. A board having the power to enforce local code provisions; e. A planning or zoning board, board of adjustment, board of appeals, or other board having the power to recommend, create, or modify land planning or zoning within the political subdivision, except for citizen 1 of 2 10/23/2002 4:38 PN i $ N http://www.ethics.state.t].us/opinions/00/CEO0/o2000-019.ht r advisory com_ , technical coordinating committees, and such other groups who only have the power to make recommendations to planning or zoning boards; f. A pension board or retirement board having the power to invest pension or retirement funds or the power to make a binding determination of one's entitlement to or amount of a pension or other retirement benefit; or g. Any other appointed member of a local government board who is required to file a statement of financial interests by the appointing authority or the enabling legislation, ordinance, or resolution creating the board. f e.s.) Chapter 2000-243, Laws of Florida, takes effect January 1, 2001. As you note, in CEO 91-35, we opined that members of CRA advisory boards were required to file financial disclosure because of their land -planning or zoning responsibilities due to their roles in the community redevelopment plan process. However, with the enactment of Chapter 2000-243, Laws of Florida, citizen advisory committees to land -planning and zoning agencies were specifically removed from the list of local officers required to file financial disclosure, unless the appointing authority (in this case, the CRA) imposes the obligation on its advisory committee members by adopting a resolution to that effect. Accordingly, as of January 1, 2001, when Chapter 2000-243, Laws of Florida, takes effect, members of advisory committees to community redevelopment agencies no longer will be considered "local officers" who are required to file statements of financial interest pursuant to Section 112.3145, Florida Statutes. ORDERED by the State of Florida Commission on Ethics meeting in public session on October 5, 2000 and RENDERED this 1 Oth day of October, 2000. Howard Marks Chair 2of2 10/23/2002 4:38 PM