CEO 96-18 -- August 29, 1996

POST-EMPLOYMENT RESTRICTIONS

FORMER AGENCY FOR HEALTH CARE ADMINISTRATION ATTORNEY

REPRESENTING CLIENTS BEFORE AGENCY

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

SUMMARY:

This opinion explores the post-employment ramifications of Section 112.313(9)(a)4, Florida Statutes, where a former State employee progressed through various positions with his agency while, at the same time, the agency itself experienced a number of legislative transformations. In essence, the former employee is interested in representing clients before the Board of Medicine and the Board of Osteopathic Medicine, neither of which he represented or appeared before while he was employed with the Agency for Health Care Administration or its predecessors, the Department of Business and Professional Regulation and the Department of Professional Regulation. The opinion examines each proposed representation and reaches a conclusion about whether the activity would violate Section 112.313(9)(a)4, Florida Statutes.

QUESTION:

What post-employment restrictions would be applicable to you, an attorney who, at the time you left employment with the State, were employed by the Agency for Health Care Administration but who previously had been employed by the Department of Business and Professional Regulation and the Department of Professional Regulation?

Through your letter of inquiry and the supplemental information you provided to our staff, we are advised that you initially were employed by the Florida Department of Professional Regulation (DPR) in November 1990 as an OPS law clerk in the Bureau of Legal Services. In this position you worked under the direct supervision of a licensed attorney who prosecuted cases before the various boards of the Allied Health and Professions sections of DPR. Effective July 1, 1993, DPR and the Department of Business Regulation were abolished and their functions were transferred to the Department of Business and Professional Regulation (DBPR). Thus, you became a DBPR employee on that date in the Division of Regulation, essentially performing the same functions as you had previously for DPR. On July 23, 1993, your position changed from law clerk to qualified representative, which you performed under the supervision of the chief attorney for the Allied Health Section, Bureau of Legal Services. On December 9, 1994, you attained employment status in a select exempt position with DBPR, continuing to represent the agency as a qualified representative for the Allied Health Section (also referred to as ALegal B@), Bureau of Legal Services. On May 24, 1995, your position changed from qualified representative to staff attorney, although your duties as a select exempt DBPR employee were essentially unchanged. You continued to be classified as a DBPR staff attorney in the Allied Health Section, Bureau of Legal Services until October 1, 1995. After that date and until you left State employment in January 1996, you were a staff attorney with the Agency for Health Care Administration (AHCA) in the Office of the General Counsel, Allied Health Section (Legal B).

You advise that as a select exempt qualified representative and then staff attorney, you served as a prosecutor, representing the agency before the Board of Veterinary Medicine, Dental Laboratories, Board of Chiropractic, and Board of Physical Therapy. You further relate that you also served as a prosecutor on individual cases for various boards within the Allied Health Section. You also defended the agency in attorney fee actions for boards comprising the Allied Health Section. These actions, governed by Section 57.111, Florida Statutes, are filed directly with the Division of Administrative Hearings, which has final order authority in proceedings of this nature. You relate that your other duties as a staff attorney included serving as counsel to the Chiropractic Peer Review Committee, assisting in the development of rules for the Board of Chiropractic, Board of Opticianry, and Dental Laboratories. You were also involved in a proceeding involving the Board of Clinical Laboratory Personnel, and you served on a contract monitoring team at the request of the Division Director for Medical Quality Assurance, conducting a site visit of the Physician Recovery Network and the Intervention Project for Nurses. These entities serve as agency consultants who monitor impaired professionals and assist with the prosecution of these professionals when they present a danger to the public health, safety, and welfare, you advise.

Thus, based upon this predicate, you question whether you can engage in various activities involving the Board of Medicine or the Board of Osteopathic Medicine, and councils falling within their jurisdictions.

The Code of Ethics for Public Officers and Employees provides in pertinent part:

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, Florida Statutes (1995).]

This statute prohibits certain categories of employees, such as those who were in the select exempt service, from personally representing another person or entity for compensation before their former agency for a period of two years following vacation of position. The "grandfather" provisions contained in Section 112.313(9)(a)6 are inapplicable, since your State employment began in November 1990, after the operative July 1, 1989 date contained in Section 112.313(9)(a)6.

In our view, the starting point in rendering this opinion is the date on which you became a select exempt employee--December 9, 1994. Although we note that Section 112.313(9)(a)2.a.(VI) includes in the list of defined employees A[a]ny person having the power normally conferred upon the positions referenced in this sub-subparagraph,@ we do not construe this language as Acapturing@ you prior to the date you became a select exempt employee. See CEO 96-9. Thus, December 9, 1994 is the operative date for purposes of Section 112.313(9)(a)4.

Turning to our next consideration, in defining the Aagency@ of a former State employee for purposes of Section 112.313(9)(a)4, we have endeavored in our past opinions to restrict that definition to those duties or segments of the former agency where one=s influence would naturally extend and which the former employee should be prohibited from exploiting for two years after leaving State employment. See CEO 95-14, CEO 94-34, CEO 94-29, CEO 93-14, and CEO 91-49. In theory, where the former employee=s duties are easily segregated or partitioned, such an approach is appropriate. However, where, as in your situation, the former employee=s duties included not only representation of the agency before numerous boards but also included special assignments outside the area of the former employee=s usual sphere of influence, it becomes exceedingly difficult to establish a Abright line@ test for determining whether one=s post-employment representation of clients violates Section 112.313(9)(a)4. Nonetheless, we note that you amended your opinion request to only include activities involving the Board of Medicine, the Board of Osteopathic Medicine, and councils under their jurisdictions.

Taking each proposed activity sequentially as outlined in your correspondence, you would not be prohibited from representing a licensed physician or osteopathic physician in an attorney fee proceeding pursuant to Section 57.111, Florida Statutes, since these proceedings are filed directly with the Division of Administrative Hearings or Circuit Court, neither of which was your Aagency.@

With regard to challenges to existing agency policy, it is presumed that you refer to policies promulgated by either the Board of Medicine or the Board of Osteopathic Medicine. Based upon the rationale of CEO 93-14, Question 3, you would not be prohibited from representing clients in these proceedings inasmuch as they are filed directly with the Division of Administrative Hearings.

With regard to appellate matters, Section 112.313(9)(a)4 does not prohibit you from representing a licensed physician or an osteopathic physician in an appeal filed in an appellate court. See CEO 93-14, Question 4.D.

Representation of licensed physicians or osteopathic physicians in disciplinary proceedings under Section 455.225, Florida Statutes, prior to the determination of probable cause would be prohibited based upon the reasoning of CEO 95-14. After the finding of probable cause, however, you would not be prohibited from representing your clients before the Division of Administrative Hearings or their respective boards.

Your next inquiry relates to licensure proceedings, both the initial licensure proceeding and reinstatement of licensure following suspension or revocation of a professional license. In our view, Section 112.313(9)(a)4 would not prohibit you from representing physicians or osteopathic physicians in licensure proceedings before their respective boards or the Division of Administrative Hearings.

Next, you question whether you would be prohibited from petitioning on behalf of a client either the Board of Medicine or the Board of Osteopathic Medicine to initiate rulemaking, modify an existing rule, or repeal an existing rule. In CEO 93-14, we advised the former D.E.R. attorney that she would be prohibited from engaging in such activities, but there we opined that her former Aagency@ was the entire Department. That opinion also noted, however, that she was only precluded from engaging in those activities when the representation was directed to the personnel of the newly created Department of Environmental Protection who were formerly personnel of D.E.R. or when the representation concerned programs, activities, functions, powers, or duties of D.E.R. See CEO 93-14, Question 6. Because we do not view your Aformer agency@ as including either the Board of Medicine or the Board of Osteopathic Medicine, we conclude that you would not be prohibited from engaging in these proposed activities before either of these two boards.

With regard to representing clients who seek to enforce their right to inspect documents pursuant to Chapter 119, Florida Statutes, the Public Records Law, which are in the possession of your former agency, this proposed activity would be prohibited by Section 112.313(9)(a)4. You represent that with the exception of the attorneys who are assigned to ALegal A@ (Medical Boards) and ALegal B@ (Allied Health), all attorneys report directly to the General Counsel. Attorneys in these two sections report directly to the chief attorney for their respective sections. Notwithstanding, we are reluctant to conclude that you would be permitted to represent clients who seek to inspect documents in the agency=s possession. In CEO 92-3, the Commission concluded that the statutory definition of Arepresentation@ prohibited a former legislator from asking legislative staff questions about a proceeding or proposed legislation for informational purposes only, in behalf of another for compensation. In CEO 95-14, we opined that a former DBPR attorney was prohibited from representing clients in proceedings involving the legal bureau because of his presumed personal influence and affiliation with the attorneys employed there. For the same reasons, we find that Section 112.313(9)(a)4 prohibits you from undertaking this proposed activity.

For proceedings filed in circuit court, pursuant to CEO 93-14, Question 4.C., you would not be prohibited from representing clients in this forum.

For proceedings brought against your clients pursuant to Section 455.228, Florida Statutes, it is our understanding that this provision governs the unlicensed practice of a profession. Further, you relate that the Agency for Health Care Administration and the Department of Business and Professional Regulation have final order authority over unlicensed individuals and that you would deal directly with each agency on these issues both prior to and after a determination of probable cause. As noted previously, in CEO 95-14, we advised a former DBPR attorney that he could not represent any clients before his former agency prior to a finding of probable cause, which prohibition was not limited only to the construction industry licensing board he previously had represented but other boards as well. He was permitted to represent clients at all other stages of the proceedings, such as before the Division of Administrative Hearings or DBPR boards other than the one he previously appeared before. We believe that this conclusion also controls your situation. Therefore, you would be prohibited from representing any client before your former agency prior to the finding of probable cause and, afterwards, you would be prohibited from representing clients before only those boards you previously appeared before.

Finally, we observe that any restrictions upon your ability to represent clients before your former agency does not extend to other members of the law firm by which you are employed.

Your inquiry is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 29, 1996, and RENDERED this 3rd day of September, 1996.

_________________________________

Mary Alice Phelan

Chair