CEO 00-11 -- August 29, 2000

POST-EMPLOYMENT RESTRICTIONS

FORMER DEPARTMENT OF ENVIRONMENTAL PROTECTION GENERAL COUNSEL REPRESENTING CLIENTS BEFORE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND

To: F. Perry Odom, Esquire (Tallahassee)

SUMMARY:

Although the Department of Environmental Protection serves as staff to the Board of Trustees for the Internal Improvement Trust Fund pursuant to Section 253.002(1), Florida Statutes, the former general counsel for the Department is not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients before the Governor and Cabinet sitting in their capacity as the Board of Trustees or from contacting their aides during the two-year period after leaving the Department. The post-employment restriction is directed at restricting activities before the agency with which he was employed and he was employed by the Department of Environmental Protection, not by the Governor or any Cabinet officer.

QUESTION:

Are you, the former general counsel for the Department of Environmental Protection, prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients for two years before the Governor and Cabinet or their aides when they are acting on matters in their capacity as the Board of Trustees for the Internal Improvement Trust Fund?

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

In your letter of inquiry, you relate that you were employed as the General Counsel for the Florida Department of Environmental Protection (DEP) from July 1996 to January 2000, when you left that position and reentered the private practice of law. You now question whether the post-employment restriction of Section 112.313(9)(a)4, Florida Statutes, prohibits you from representing clients for compensation before the Governor and Cabinet as well as their aides when considering a matter in their collegial capacity as the Board of Trustees of the Internal Improvement Trust Fund ("BTIITF").

We are advised that Section 253.002(1), Florida Statutes, provides that DEP "shall perform all staff duties and functions related to the acquisition, administration, and disposition of state lands, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund." Further, you advise that during your tenure as General Counsel, you personally participated as staff to the Board of Trustees by attending Cabinet aide meetings and meetings before the Governor and Cabinet sitting in their capacity as the Board of Trustees. Notwithstanding, however, you question whether your former agency for purposes of Section 112.313(9)(a)4 would include the Governor and Cabinet and their respective aides.

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.

. . .

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 provision prohibits you from representing clients for compensation before your former agency. The question we must address is whether your "former agency" goes beyond DEP and includes the Governor and Cabinet and their aides.

The underlying intent of Section 112.313(9)(a)4, Florida Statutes, which is strikingly similar to the Sunshine Amendment's Article II, Section 8(e), Florida Constitution, is primarily gleaned from the same materials that the courts have examined when interpreting Article II, Section 8(e), Florida Constitution. See CEO 81-57 for its discussion and analysis of the Sunshine Amendment and the pertinent caselaw. Thus, it has been the Commission's practice to also examine those same materials when interpreting the post-employment restriction in Section 112.313(9)(a)4, Florida Statutes. See CEO's 94-20 and 00-1. In CEO 00-1, we opined that the former Executive Director of the Department of Revenue was prohibited from representing clients before his former agency--the Department of Revenue--for two years. Even though the Executive Director of the Department of Revenue is appointed by the Governor and Cabinet with the Governor and Cabinet serving as the head of the Department pursuant to Section 20.21, Florida Statutes, we did not suggest that he would be prohibited from representing clients before the Governor and Cabinet. In CEO 96-33, we opined that the former deputy comptroller for the Department of Banking and Finance was not prohibited from representing clients before the Governor and Cabinet sitting as a collegial body, although he was prohibited from representing clients before the Comptroller individually and the entire Department of Banking and Finance. However, we also recognized in that opinion that the former deputy comptroller's duties did not extend to Cabinet affairs, either internally within the Department or externally with other members of the Cabinet.

Our opinions interpreting Section 112.313(9)(a)4 have attempted to define the "agency" of a former employee narrowly, restricting the 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. We have not yet had the occasion to address whether one's former agency extends to other agencies or departments as a result of the former employee's duties related to a separate and distinct unit of government. However, the language in the statute seems clear that a former employee is restricted from representing clients "before the agency with which he or she was employed . . . ." Therefore, as in CEO 91-49, Question 3, where we advised a former Governor's Office attorney that he was not restricted from representing clients before the Department of Community Affairs even though he acted as counsel to the Administration Commission and the Department of Community Affairs had been a party in proceedings before the Administration Commission, we do not believe that your "former agency" includes the Governor and Cabinet and their aides. Therefore, you are not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients before the Governor and Cabinet when sitting in their capacity as the Board of Trustees for the Internal Improvement Trust Fund, and you are not prohibited from contacting their departmental aides concerning a matter coming before the Board of Trustees. However, you are prohibited from contacting employees of the Department of Environmental Protection on any matter for two years from your termination date pursuant to Section 112.313(9)(a)4, Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 24, 2000 and RENDERED this 29th day of August, 2000.

______________________________

Howard Marks, Chair