CEO 94-34 -- July 14, 1994

POSTEMPLOYMENT RESTRICTIONS

APPLICABILITY OF TWO-YEAR "REVOLVING DOOR"

RESTRICTION TO AGENCY FOR HEALTH CARE

ADMINISTRATION EMPLOYEE

To: (Name withheld at ther person's request.)

SUMMARY:

An employee of the Agency for Health Care Administration, who was employed with the Department of Health and Rehabilitative Services in a Senior Management Service position on and prior to July 1, 1989, who has been continuously employed with HRS and AHCA since that time, and whose position was transferred to the AHCA when that agency was created, would be exempt from the two-year "revolving door" prohibition of Section 112.313(9)(a)4, Florida Statutes, against representing clients before the AHCA if he were to leave his current Selected Exempt Service AHCA employment for the private sector.

QUESTION:

Would you, an employee of the Agency for Health Care Administration, be subject to the two-year "revolving door" prohibition against representing clients before the Agency if you were to leave your employment with the Agency?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you advise that you were employed in the Senior Management Service position of Assistant Secretary for Regulation of the Department of Health and Rehabilitative Services (HRS) from May 27, 1987 until July 1, 1992, when your position was transferred to the newly created Agency for Health Care Administration (AHCA). At that time, all of the duties, responsibilities, budget, and personnel associated with the position were transferred to the AHCA, pursuant to Section 10 of Chapter 92-33, Laws of Florida.

In October 1992, following extensive organizational planning for the new agency, the administrators of AHCA assigned the position you occupied a new function and title within AHCA. At that time, you were assigned a Selected Exempt Service position as Senior Attorney within AHCA, a position which you continue to hold. You question whether you would be prohibited from representing clients before the AHCA for a two-year period if you were to leave your current employment.

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 officials, and designated public employees.

2. As used in this paragraph:

a. "Employee" means:

(I) Any person employed in the executive 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.

* * *

4. No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty in the amount equal to the compensation which the person receives for the prohibited conduct.

6. This paragraph is not applicable to a person employed by the Legislature or other agency prior to July 1, 1989, or persons who have reached normal retirement age as defined in s. 121.021(29), and who have retired under the provisions of chapter 121 by July 1, 1991. [Section 112.313(9), Florida Statutes.]

Section 112.313(9)(a)4 prohibits Senior Management and Selected Exempt Service employees within the executive branch from personally representing another person or entity for compensation before their former agency for a period of two years following vacation of position, unless their employment falls within the terms of the exemption contained in Section 112.313(9)(a)6.

Effective January 1, 1995, the "revolving door" restriction of Section 112.313(9)(a)4 will be applicable to two new groups of positions, under the definition of "employee": legislative branch employees in the Senior Management Service or the Selected Exempt Service (which includes certain Public Service Commission positions), and certain positions within the State University System. See Chapter 94-277, Section 1, Laws of Florida. In addition, the new law will make the similar two-year restriction contained in Section 112.313(9)(a)3 (currently applicable to members of the Legislature and statewide elected officers) applicable to a new category of "appointed state officers."

We also note that, effective January 1, 1995, the exemption portion of Section 112.313(9)(a) will read:

6. This paragraph is not applicable to:

a. A person employed by the Legislature or other agency prior to July 1, 1989;

b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;

c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;

d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or

e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. [Ch. 94-277, Sec. 1, LoF.]

In CEO 94-20, we concluded that the exemption in (9)(a)6 must relate to the employment that gives rise to the potential "revolving door" prohibition, with the result that a person who began employment with an agency after July 1, 1989 would not be exempt from the two-year prohibition after leaving employment with that agency, regardless of whether the person had been employed with another agency prior to or on July 1, 1989 or had some earlier period of employment with the same agency that ended prior to or on July 1, 1989. Clearly, continuous employment beginning prior to July 1, 1989 in the same position with the same agency allows one to leave that employment position and represent clients before that agency, notwithstanding the two-year revolving door prohibition of Section 112.313(9)(a).

Your situation varies from the above in two respects, however, because you are employed by a different agency than you were on and before July 1, 1989, and because you are employed in a different position with different responsibilities than you held on and before July 1, 1989. Nevertheless, we conclude that you would be exempt from the "revolving door" prohibition.

First, we are of the opinion that your exempt status under Section 112.313(9)(a) did not change when your position was transferred to AHCA on July 1, 1992. Although a new "agency" was created on that date, assuming part of the functions of HRS, your employment was simply transferred to that agency under the terms of the law--you did not cease your employment with one agency in order to begin work with another. Moreover, interpreting the exemption otherwise, as you have observed, would have the (likely unintended) consequence of altering the employee's status under Section 112.313(9)(a) as a matter of law when the employee's position is transferred to another agency and could lead to a mass exodus of upper management personnel--a consequence that the exemption appears designed to forestall. Therefore, in effect, we conclude that your employment has been continuously with the same agency.

Secondly, we do not believe that you are no longer exempt under the law because you are employed in a different position with different responsibilities than you held on and before July 1, 1989. This result seems particularly appropriate under the language of the new law, which designates both persons in "defined" positions and other positions on July 1, 1989 as being exempt. If it was not understood that a person could move between positions within the same agency without losing one's exempt status, there would have been no reason to include persons who were not in "defined" positions on July 1, 1989. In other words, the new law apparently contemplates that a person who did not hold a "defined" position on July 1, 1989, but who otherwise was employed by an agency on that date, could later accept a defined position with that agency after July 1, 1989 and continue to be exempt upon leaving the defined position. We see no reason why, under this view of the law, one could not move from one Senior Management position to a Selected Exempt position without losing exempt status.

Accordingly, we find that you would not be subject to the two-year "revolving door" prohibition against representing clients before the Agency for Health Care Administration if you were to leave your current employment with the Agency.