An Assistant State Attorney is not prohibited by Section 112.313(9), Florida Statutes, from representing parents in dependency cases after retiring from the State Attorney's Office, where the State Attorney's Office represents the State in such cases.
Will you, upon your retirement from the State Attorney's Office, be prohibited by Section 112.313(9), Florida Statutes, from representing parents in dependency cases, where the State Attorney's Office represents the State in such cases?
Your question is answered in the negative.
You advise that you are currently employed as an Assistant State Attorney in the Sixth Judicial Circuit. Your job responsibilities include representing the State in child dependency cases. You write that the parents in such cases typically are represented by the Regional Counsel, or, in cases of conflict, by a private attorney through a contract with the Justice Administration Commission. You expect to retire later this year, and inquire whether Section 112.313(9) will prohibit you from taking such cases as a private attorney.
Section 112.313(9), Florida Statutes, provides in relevant part::
. . .
POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.—
(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.
2. As used in this paragraph:
a. "Employee" means:
(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.
(VI) Any person, including an other-personal-services employee, having the power normally conferred upon the positions referenced in this sub-subparagraph.
4. No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.
Section 112.313(9)(a)4 prohibits a former agency employee from representing another person or entity for compensation "before the agency with which he was employed" for a period of two years following vacation of his position. As your work in representing parents in dependency cases would necessitate personal communications with employees of the State Attorney's Office—your former agency—if you are an "employee" as the term is defined in the statute, you would be precluded from taking these cases for two years after your retirement. See, CEO 06-1 (Selected Exempt Service attorney employed by the Florida Department of Transportation would be prohibited by Section 112.313(9)(a)4 from personally representing another person or entity for compensation against the Department in eminent domain proceedings, presuit negotiations for same, or in an inverse condemnation lawsuit or negotiations prior to such a lawsuit against the Department for two years following vacation of his position). We have not previously had occasion to consider whether Assistant State Attorneys are "employees" as defined in Section 112.313(9)(a)2.a.
The term "employee" as used in Section 112.313(9)(a)2.a, includes members of the Senior Management Service (SMS) "as defined in s. 110.402" and any person holding a position in the Selected Exempt Service (SES) "as defined in s. 110.602." 1
In turn, Section 110.402(2), Florida Statutes, states, "The Senior Management Service shall be limited to those positions which are exempt from the Career Service System by s. 110.205(2) and for which the salaries and benefits are set by the department [of Management Services] in accordance with the rules of the Senior Management Service." Section 110.602, Florida Statutes, states Selected Exempt positions "shall include, and shall be limited to, those positions which are exempt from the Career Service System pursuant to s. 110.205(2) and (5) and for which the salaries and benefits are set by the department in accordance with the rules of the Selected Exempt Service." (All emphasis supplied.)
Assistant State Attorneys are specifically exempted from the Career Service System by Section 110.205(2)(x), Florida Statutes. However, it does not appear that their salaries and benefits are "set by the department [of Management Services] in accordance with the rules of the Selected Exempt Service" as is required to meet the definition of a Senior Management or Selected Exempt position established in Section 110.602. This is because pursuant to Section 27.25, Florida Statutes, the State Attorneys are authorized "to employ and establish, in such number as is authorized by the General Appropriations Act, assistant state attorneys and other staff pursuant to s. 29.005" and further
shall jointly develop a coordinated classification and pay plan which shall be submitted on or before January 1 of each year to the Justice Administrative Commission, the office of the President of the Senate, and the office of the Speaker of the House of Representatives. Such plan shall be developed in accordance with policies and procedures of the Executive Office of the Governor established pursuant to s. 216.181.
Thus, the salaries and benefits of Assistant State Attorneys are not "set by the department [of Management Services]." That being the case, as an Assistant State Attorney you do not meet the definition of "employee" in Section 112.313(9)(a)2.a.(I).
We next must determine whether you are brought within the ambit of the restriction by Section 112.313(9)(a)2.a.(VI), which includes in the list of defined employees "[a]ny person . . . having the power normally conferred upon the positions referenced in this sub-subparagraph." We have had little opportunity to construe the meaning of this particular language in the context of the post-employment prohibition, but we have often had occasion to address similar language in the context of the financial disclosure law. In Section 112.3145(1)(b)3., Florida Statutes, the definition of the term "specified state employee" lists a number of specific positions, and then includes, "any person having the power normally conferred upon such persons, by whatever title." In this context, we have found the language applicable where the responsibilities associated with the individual's position made it comparable to one of the specified positions. For example, in CEO 97-18 we found that a Correctional Assistant Superintendent II with the Department of Corrections was the equivalent of an assistant division director or an assistant bureau chief—positions named in the statute—and was thus required to make disclosure.
That kind of comparison is impossible in this case, because there is no "equivalent" to an assistant state attorney's position, except another assistant state attorney's position. The group is a class unto itself with unique responsibilities not shared by any other agency. Therefore, we cannot say that an assistant state attorney has "the power normally conferred" upon any other SES or SMS employee.
This is consistent with our findings in the few cases where we have considered this language in the context of post-employment restrictions. In CEO 05-1, we dealt with a question from a former OPS (other personal service) employee with the Department of Environmental Protection. Although the individual held a position—Senior Attorney—ordinarily subject to the restriction, we found that the restriction did not apply in that case. Because of the time-limited nature of OPS employment and the fact that agencies cannot use it to fill established positions or assign to it the duties of any vacant, authorized position, it was our view that persons in OPS positions could not possess the "power normally conferred" upon persons in established Selected Exempt Service positions.2 Similarly here, since there are no comparable positions to that of an assistant state attorney, it does not seem to us that you are capable of having the "power normally conferred" upon SES or SMS positions.
Accordingly, we find that you will not, upon your retirement from the State Attorney's Office, be prohibited by Section 112.313(9), Florida Statutes, from representing parents in dependency cases, where the State Attorney's Office represents the State in such cases. Please note that this opinion does not address any possible conflicts of interest that may exist under the Rules Regulating the Florida Bar, since we do not administer the standards of conduct applicable to Florida Bar members. For advice about the appropriate standards of conduct under these rules, please contact the Florida Bar.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.
 We are aware that the definition speaks only to persons employed in the executive or legislative branch of government, and are mindful of the argument that the Office of State Attorney is part of the judicial branch. "A state attorney, while being a quasi-judicial officer, also shares some attributes of the executive." Office of State Attorney, Fourth Judicial Circuit of Florida v. Parrotino, 628 So.2d 1097, 1099 (Fla. 1993) However, given our resolution of the issue, it is not necessary to reach that question.
 The Legislature subsequently amended Section 112.313(9)(a)2.a to specifically include OPS positions.