CEO 90-4 -- January 24, 1990

SUNSHINE AMENDMENT

FORMER STATE REPRESENTATIVE SERVING

AS GENERAL COUNSEL TO GOVERNOR

To: Peter M. Dunbar, General Counsel, Office of the Governor (Tallahassee)

SUMMARY:

The "Sunshine Amendment," in Article II, Section 8(e), Florida Constitution, does not prohibit a former member of the Florida House of Representatives from holding the position of General Counsel to the Governor insofar as his duties require him to review legislation, to advise the Governor on legislative matters, and to supervise members of the Governor's staff who are registered to lobby the Legislature, without requiring him to personally appear before the Legislature. Nor would he be restricted from advising the Governor on any matters upon which the Governor wishes information, requests advice, or seeks an opinion.

Based upon CEO 81-57, Article II, Section 8(e), does not prohibit a former legislator from appearing before a committee or subcommittee of the Legislature in his capacity as General Counsel to the Governor when requested to do so by the chairman of the committee or subcommittee where authorized by legislative procedures. Nor would he be prohibited from appearing before an individual member of the Legislature at the member's request in his capacity as General Counsel pertaining to a legislative matter of interest to the Governor, to the extent that he would be providing a bona fide, good faith response to a request for information on a specific subject, not solicited directly or indirectly. Because party membership is legally irrelevant under the terms of Article II, Section 8(e), the answer to this question does not depend on what party controls each House of the Legislature or holds committee or subcommittee chairmanships.

Article II, Section 8(e), does not prohibit a former legislator from responding as General Counsel for the Governor to questions and inquiries from members of the media relating to the Governor's positions or policies on matters pending in the Florida Legislature.

QUESTION 1:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a former member of the Florida House of Representatives, from holding the position of General Counsel to the Governor, if the duties of the position require you on behalf of the Governor to review and advise him on legislation and to supervise staff members who are registered to lobby, but do not require you to personally appear before the Legislature?

This question is answered in the negative.

In your letter of inquiry you advise that, as the Governor's General Counsel, you are assigned a wide variety of responsibilities, including administrative and supervisory responsibility for the Governor's Office of Legal Affairs, the Governor's Office for Legislative Affairs, the Office of the Victims' Rights Coordinator, the Crime Prevention Law Enforcement Study Commission, and the Spill Response Task Force. Each of these commissions, offices, and policy units has an executive director or coordinator who is directly under your supervision but who is responsible for the day-to-day activities of that particular unit. It is also your responsibility to advise and counsel with the Governor on all matters under your supervision.

As one of the Governor's Senior Staff members, you often are called upon by members of the media and by others to comment on the Governor's opinions and positions on various matters, including his views with regard to legislation. The lobbying activities for the Governor's Office and for the Departments under the Governor are handled by the respective legislative affairs directors or coordinators, each of whom is a registered lobbyist. You personally have not registered to lobby and do not appear unsolicited before any member of the Legislature or before any legislative committee or subcommittee.

When you are asked to be present at a committee or to come to a legislator's office to respond to issues or questions, you do so. In making such an appearance, you keep a separate log in your office which tracks each request from the legislative member. The log indicates who requested your appearance, the matter upon which you were asked, and the location at which the meeting or hearing took place. You have a general letter from the Speaker of the House, the President of the Senate, and the Republican leaders in both Houses requesting that you make yourself continually available to the members of the House and Senate to give them information and assistance as it relates to the Governor's opinions and recommendations. Notwithstanding these letters, you have not relied on them as the authority for any of your appearances, and an individual request for each occasion is a prerequisite to your appearance.

Our guide in advising you on this and the following five questions is the "Sunshine Amendment" of the Florida Constitution, which provides in relevant part:

No member of the legislature or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of two years following vacation of office. [Article II, Section 8(e), Florida Constitution.]

As a former member of the Legislature, you are prohibited by this provision from personally representing another person or entity for compensation before the Legislature for a period of two years following the date on which you left office.

Effective July 6, 1989, this prohibition has been incorporated into the provisions of the Code of Ethics for Public Officers and Employees as Section 112.3141(1)(c), Florida Statutes. See Chapter 89-380, Section 1, Laws of Florida. As the statutory prohibition merely reiterates the language used in the "Sunshine Amendment," however, we see no reason why the interpretation of the statute would vary from that of the "Sunshine Amendment." Similarly, because the identical language is used in both the Constitution and in the statute, we need not address in this opinion the question of to what extent the statute would be applicable to one who left the Legislature before the effective date of the statute.

We previously have considered only once the question of how Article II, Section 8(e), applies to a legislator who leaves his position in the Legislature for employment with the Executive Branch, in rendering opinion CEO 81-57. There, we concluded that the "Sunshine Amendment" would prohibit a former legislator from accepting employment as a division director of a State department where that employment would require him to engage in lobbying activities before the Legislature in behalf of the division within two years after his leaving the Legislature. However, we also noted that the prohibition is only against "personally" representing another person or entity. On that basis, we found that the former legislator could be employed as division director were the duty of representing the division's interests before the Legislature to be transferred to another person in the department during the two-year period.

Your first question, therefore, was directly addressed in our opinion CEO 81-57. Insofar as your duties as General Counsel to the Governor require you to review legislation, to advise the Governor about legislative matters, and to supervise members of the Governor's staff who are registered to lobby, but do not require you to personally appear before the Legislature, you are not "personally" representing the Governor or the Office of the Governor before the Legislature.

Accordingly, we find that Article II, Section 8(e), Florida Constitution, does not prohibit you from holding the position of General Counsel to the Governor insofar as your duties require you to review legislation, to advise him on legislative matters, and to supervise members of the Governor's staff who are registered to lobby the Legislature, without requiring you to personally appear before the Legislature.

QUESTION 2:

This question is answered in the negative.

Article II, Section 8(e), prohibits a former legislator from being employed to lobby the Legislature within a two-year period after leaving the Legislature. As we viewed this prohibition in CEO 81-57,

the provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. In the context of the Legislature, the provision seeks to preserve the integrity of the legislative process by ensuring that decisions of members of the Legislature will not be made out of regard for possible employment as lobbyists.

It is clear that the prohibition was not intended to restrict interactions between a former legislator and his new employer, but rather only the interactions between a former legislator and his former colleagues. The nature and scope of the relationship between the former legislator and his employer or client is irrelevant, so long as that relationship does not entail compensation for personally lobbying the Legislature in behalf of the employer or client.

Accordingly, we find that Article II, Section 8(e), does not restrict you from advising the Governor on any matters upon which the Governor wishes information, requests advice, or seeks an opinion.

QUESTION 3:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a former member of the Florida House of Representatives who is serving as General Counsel to the Governor, from appearing before a committee or subcommittee of the Legislature when requested to do so by the chairman of the committee or subcommittee?

This question is answered in the negative.

In CEO 81-57, we also were asked whether the "Sunshine Amendment" would prohibit the former legislator from accepting employment as division director of a State department where that employment would not require him to engage in lobbying activities before the Legislature in behalf of the division, but where he might be requested by the Legislature to appear before a legislative committee or subcommittee as a witness or for informational purposes. We found that such informational appearances at the request of a chairman would not constitute lobbying and would not fall within the intent of the Sunshine Amendment's prohibition, stating:

Were the provision to be interpreted otherwise it would have the effect of preventing the Legislature from requesting former legislators to appear and present testimony or other information, thus hampering the Legislature in the legitimate exercise of its constitutional responsibilities.

In addition, we noted that Section 11.061, Florida Statutes, requires the registration of non-legislative State employees who seek "to encourage the passage, defeat, or modification of any legislation by personal appearance or attendance" before the Legislature or any committee, but exempts from registration persons who appear before a committee or subcommittee at the request of the committee or subcommittee chairman as a witness or for informational purposes.

Accordingly, based upon CEO 81-57 we find that Article II, Section 8(e), does not prohibit you from appearing before a committee or subcommittee of the Legislature in your capacity as General Counsel to the Governor when requested to do so by the chairman of the committee or subcommittee.

In answering this question, we do not mean to imply that the request to appear before a committee or subcommittee must be by invitation of its chairman. The Legislature clearly possesses the constitutional authority to determine its procedures; this Commission has no authority to decide whether those procedures fall within the scope of the authority granted the Legislature by the Florida Constitution, although we do have the authority to determine whether particular conduct is violative of Article II, Section 8(e). So long as the procedures utilized to request your appearance before a committee or subcommittee are consistent with all applicable provisions of the Florida Constitution, it is our opinion that your appearance in response to such a request would not be prohibited by Article II, Section 8(e). In other words, you have asked whether you may appear at the invitation of a committee or subcommittee chairman, and our response follows from our understanding that it is appropriate for a chairman to do so under existing procedures of both Houses of the Legislature.

QUESTION 4:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a former member of the Florida House of Representatives, from appearing before an individual member of the Legislature at the member's request?

To the extent that your appearance before the member would be in your capacity as General Counsel and would pertain to a legislative matter of interest to the Governor, this question is answered in the negative, subject to the limitations discussed below.

As a matter of constitutional interpretation, generally, there are two ways through which it may be concluded that a particular provision of the constitution does not apply in a particular case. The express language of the constitutional provision may not be applicable, for one or more reasons. Alternatively, there may be another provision of the constitution which provides an implied limitation on the scope of the first provision.

In construing Article II, Section (8)(e), the express language of the prohibition gives us only seven areas for interpretation. First, was the affected person a "member of the legislature or statewide elected officer"? Second, is that former officer undertaking to "represent" someone or some entity? Third, is the former officer "personally" undertaking such a representation? Fourth, is the former officer representing "another person or entity"? Fifth, is the representation "for compensation"? Sixth, is the representation "before the government body or agency of which the individual was an officer or member"? Seventh, is the representation occurring within "a period of two years following vacation of office"?

The first, sixth, and seventh criteria clearly are met here. You are a former member of the House of Representatives whose contacts are with members of the Legislature on matters of legislative concern within two years after leaving office. We also conclude that the third criterion is met when you appear in your capacity as General Counsel regarding a legislative matter of interest to the Governor before a member of the Legislature at the member's request. Under the circumstances presented, you would be appearing "personally" rather than through any intermediary.

The fifth element requires that the representation be undertaken "for compensation." Interpreting this phrase, we have advised that the reimbursement of travel, food, and lodging expenses, without more, does not constitute the receipt of "compensation" for purposes of the Sunshine Amendment's prohibition. See CEO 80-41, CEO 83-16, and CEO 84-114. However, we do not believe that this phrase allows us to distinguish between persons whose full time employment includes responsibilities for lobbying the Legislature, part-time employees responsible for lobbying the Legislature, and persons who are hired as independent contractors to lobby the Legislature in behalf of one or more clients, as in all of these instances the lobbying activity is performed "for compensation." Were we to interpret this phrase otherwise, we would have to conclude that even private lobbying interests could hire former legislators to lobby for them, so long as they were employees rather than independent contractors. Here, you are compensated as an employee for your responsibilities as General Counsel, so your appearance before an individual legislator in your capacity as General Counsel would be "for compensation."

With respect to the fourth criterion, we are of the opinion that in the present context the Governor (or the Office of the Governor) constitutes "another person or entity" within the contemplation of the Sunshine Amendment. In CEO 81-57 we concluded that the Sunshine Amendment's prohibition includes the representation of both public and private sector entities and that there are substantial reasons for not making such a distinction.

Although we recognize that in representing a governmental entity before the Legislature one ultimately is representing the interests of the people whom that governmental unit represents, we also recognize that public agencies represent a variety of interests, some of which compete with the interests of other public entities for the Legislature's attention. While the cities may want a particular bill to include a specific provision, the counties may not feel that such a provision is in their best interests. Although a local taxing authority may want certain powers included in its special act, the city or county in which the authority is located may have a different preference. These competing, but public, interests are represented before the Legislature, with each seeking the best representation available.

As expressed in Article II, Section 8, the overriding purpose of the Sunshine Amendment is to assure the people's right to secure and sustain the public trust exercised by public officials against abuse. We do not believe that the public trust is enhanced by a decision which would permit a legislator to leave the Legislature and set up a lobbying office through which he would personally represent cities, counties, or special taxing districts for a fee. In effect, we would be saying that a former legislator may lobby for whatever compensation he can obtain, so long as he limits his clientele. As noted in CEO 81-57, we believe that there is a market for public sector lobbyists as well as for those who lobby for private sector interests.

Clearly, your position and responsibilities as General Counsel for the Governor are very different from those of a lobbyist in private practice. However, under the criteria provided in the Sunshine Amendment, we do not believe that your situation may be distinguished from that of a former legislator who wishes to open a lobbying firm to represent only governmental agencies, in such a way as to allow you to continuously and personally engage in lobbying activities on behalf of the Governor.

Nevertheless, we are of the opinion that bona fide, good faith responses to requests for information on specific subjects by legislators, not having been solicited directly or indirectly by the former legislator, do not constitute "representation" for purposes of the second criterion noted above. In this respect, we are of the opinion that one is not necessarily "representing" his employer before the Legislature when responding to a specific request for information about that employer from an individual legislator. We are aware that such an interpretation may lead to the potential for abuse, resulting in continuous lobbying activities in the guise of requests for information. However, we believe that the possibility that this interpretation may create a loophole in the prohibition of the Sunshine Amendment is severely limited by the requirements that such contacts be bona fide, good faith responses, that they pertain to requests for information on a specific subject, and that they not be solicited directly or indirectly by the former legislator.

In deciding whether contact with an individual member constitutes a bona fide, good faith response to an inquiry for information, we will examine all the circumstances surrounding the contact with the legislator. For example, we do not believe that continuously being requested to be available to individual members of the Legislature would constitute a bona fide, good faith response to a request for information on a specific subject. Nor do we believe that stalking the halls of the Legislature in the hope that an inquiry may result would fall within this exception, in contrast to, for example, simply receiving an unsolicited telephone call from a legislator seeking an answer to a particular question.

Similarly, in determining whether a response is bona fide or in good faith, there may be circumstances where it would be appropriate to review the nature of the former legislator's employment which led to the contact with the individual legislator. Although we do not overrule CEO 81-57 and we do not believe that full time employment by a public agency provides sufficient justification to exempt a former legislator's lobbying activities in behalf of that agency, it is possible that the nature of the former legislator's employment could be a factor which would be relevant in determining whether the Sunshine Amendment was violated in a particular case. In other words, we can conceive of circumstances where employment with a public agency more naturally would result in an unsolicited inquiry from a legislator than employment by a private sector entity.

Accordingly, we find that Article II, Section 8(e), does not prohibit you from appearing before an individual member of the Legislature at the member's request in your capacity as General Counsel pertaining to a legislative matter of interest to the Governor, to the extent that you would be providing a bona fide, good faith response to a request for information on a specific subject, not having been solicited directly or indirectly by you.

QUESTION 5:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a former member of the Florida House of Representatives who is serving as General Counsel to the Governor, from responding to questions and inquiries from Republican members of the Legislature at times when the Legislature is controlled by a Democratic majority and no Republican members of the Legislature hold any committee or subcommittee chairmanships?

We are firmly committed to the proposition that ethics in government applies equally to all, regardless of political affiliation. No provision in the "Sunshine Amendment" or in the Code of Ethics contains any reference to political parties, except for Section 112.321(1), Florida Statutes, which seeks to ensure that our decisions are not based on party affiliation by mandating balanced appointments to this Commission according to political party membership. Therefore, as a matter of law, party membership and control of the Legislature or of the Office of Governor must be irrelevant to our decisions.

Accordingly, as this question is essentially identical to your fourth question, above, we find that Article II, Section 8(e), does not prohibit you from responding to questions and inquiries from Republican members of the Legislature at times when the Legislature is controlled by a Democratic majority and no Republican members of the Legislature hold any committee or subcommittee chairmanships, to the extent that your appearance before the member would be in your capacity as General Counsel and would pertain to any legislative matter of interest to the Governor and to the extent that you would be providing a bona fide, good faith response to a request for information on a specific subject, not having been solicited directly or indirectly by you.

QUESTION 6:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a former member of the Florida House of Representatives who is serving as General Counsel to the Governor, from responding to questions and inquiries by members of the media relating to the Governor's positions or policies on matters pending in the Florida Legislature?

This question is answered in the negative.

As we noted in our response to your second question, above, the prohibition of the "Sunshine Amendment" is directed at interactions between a former legislator and his former colleagues, rather than at other interactions which he may have as a result of his employment after leaving the Legislature. In responding to inquiries from members of the media about the Governor's legislative policies or positions, your actions would not constitute the personal representation of the Governor or the Office of the Governor before the Legislature.

Accordingly, we find that Article II, Section 8(e), does not prohibit you from responding as General Counsel for the Governor to questions and inquiries from members of the media relating to the Governor's positions or policies on matters pending in the Florida Legislature.