CEO 96-9 -- March 11, 1996

POSTEMPLOYMENT RESTRICTIONS

APPLICABILITY OF TWO-YEAR "REVOLVING DOOR" RESTRICTION

TO STAFF DIRECTOR OF COMMISSION ON LONG-TERM CARE IN FLORIDA

To: (Name withheld at the person=s request.)

SUMMARY:

The staff director to the Commission on Long-Term Care in Florida is not subject to the post-employment restrictions contained in Section 112.313(9)(a), Florida Statutes, which prohibit certain State employees from representing persons or entities for compensation before their former agency for two years after leaving public employment. The position of staff director to the Commission is not specifically enumerated in the statutory list of Acovered@ positions and, therefore, under the doctrine of Aexpressio unius est exclusio alterius,@ she is not subject to its post-employment restrictions.

QUESTION:

Would you, the staff director of the Commission on Long-Term Care in Florida, be prohibited from representing another person or entity before the Florida Legislature or the Commission after vacating your present position?

Your question is answered in the negative, under the circumstances presented.

In the correspondence relating to your opinion request, you seek a determination as to the extent to which you would be prohibited from representing other persons or entities for compensation after you cease to be the staff director of the Commission on Long-Term Care in Florida. You represented to our staff that you would not be considered Agrandfathered-in,@ since your employment with the Commission began after July 1, 1989, the operative date for grandfathering-in pursuant to Section 112.313(9)(a)6, Florida Statutes.

We are further advised that the Commission on Long-Term Care in Florida was created by proviso language contained in the 1994-95 General Appropriations Act, Chapter 94-357, Laws of Florida, '1A, Item 1417A. That language states that for administrative purposes, the Commission is assigned to the Joint Legislative Management Committee and that its 18 members are appointed by the Speaker of the House, the Senate President, and the Governor and also include several designated agency heads or their representatives. It is apparent to us that the Commission serves in an essentially ad hoc, advisory capacity, with its main purpose the preparation of a report for the Legislature on long-term care in Florida. We are further advised that the Commission=s appropriation will expire on June 30, 1996, and that legislative proposals yet-to-be considered may re-create the Commission under the executive branch (rather than legislative), significantly changing its membership and mission.

With this as a preface, you question what restrictions will apply to your career choices when you are no longer employed as the staff director of the Commission.

The applicable statutory language is as follows:

(9) 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.

(II) The Auditor General, the Sergeant at Arms and Secretary of the Senate, and the Sergeant at Arms and Clerk of the House of Representatives.

(III) The executive director of the Advisory Council on Intergovernmental Relations and the executive director and deputy executive director of the Commission on Ethics.

(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title. . . .

(VI) Any person having the power normally conferred upon the positions referenced in this sub subparagraph. . . .

c. "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control. . . .

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. . . .

This statute prohibits certain State employees from personally representing another person or entity for compensation before their agency for two years after leaving public employment.

Before determining the extent to which you would be restricted from representing clients, we must first determine whether you are even an Aemployee@ for purposes of Section 112.313(9)(a)2.a. Reviewing each part of this sub-subparagraph sequentially, under I, your position, although in the legislative branch of government, is not considered Senior Management nor Select Exempt. Neither do you hold one of the positions listed under II or III. Although you do hold the position of staff director, IV specifies that it be the staff director of a joint committee, a standing committee, or a select committee of the Legislature, and the Commission on Long-Term Care in Florida does not constitute any of those creatures based upon our review of Chapter 11, Florida Statutes, and pursuant to House and Senate rules.

The only remaining section that could refer to positions such as yours is in VI, which includes Aany person having the power normally conferred upon the positions referenced in this sub-subparagraph.@ Notwithstanding, we do not construe this language to include positions such as yours. Aside from notions of fairness and whether you were on notice that VI referred to you, we believe that the doctrine of Aexpressio unius est exclusio alterius@ (mention of one thing implies exclusion of another) should be applied to conclude that since the position of staff director to the Commission on Long-Term Care in Florida is not specifically listed in Section 112.313(9)(a)2.a., then you are not an Aemployee@ for purposes of the post-employment restrictions contained therein. Initially, we observe that the other positions referred to in the statute are clearly responsible positions of governmental authority in agencies that have ongoing regulatory or otherwise substantial authority to decide public policy. In contrast, whatever power has been conferred upon you as staff director to an advisory group cannot be the same type of Apower@ contemplated in VI. We also note that this conclusion is appropriate under the circumstances, where you accepted a temporary, time-limited position as staff director to an advisory commission, and it would seem unduly harsh to conclude that you would face post-employment restrictions under those circumstances. Further, even if we were to conclude that your position was covered, under the rationale of CEO 95-31, which we rendered to the Executive Director of the Advisory Council on Intergovernmental Relations, your Aagency@ would be the Commission on Long-Term Care in Florida, not the entire Florida Legislature. Where your agency ceases to exist, any restriction against lobbying the Commission would not extend to any other agency or agencies that assume the Commission=s duties.

Accordingly, under the circumstances presented, we find that you, as the staff director to the Commission on Long-Term Care in Florida, are not subject to the two-year Arevolving door@ prohibition against representing clients before your former agency after you cease to be director.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 1996, and RENDERED this 11th day of March, 1996.

__________________________

William J. Rish

Chairman