CEO 91-54 -- September 13, 1991

SUNSHINE AMENDMENT

STATE REPRESENTATIVE OR LAW FIRM PARTNER

REPRESENTING CLIENTS BEFORE STATE AGENCIES

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

SUMMARY:

The Sunshine Amendment (Article II, Section 8(e), Florida Constitution) and Section 112.3141(1)(c), Florida Statutes, prohibit a legislator from personally representing a client before State agencies other than judicial tribunals. Aside from this restriction, a legislator would be permitted to personally represent a client for compensation where the client was suing the State agency before a judicial tribunal, but the legislator would be prohibited from representing the client before a State agency in administrative proceedings pursuant to Chapter 120, Florida Statutes. The partner of the legislator would be permitted to represent the client before State agencies in either judicial or administrative forums. Water management districts are considered to be local agencies, and thus the legislator would be permitted to personally represent a client before a water management district in either judicial or administrative proceedings. The opinion references CEO 84-6, CEO 83-25, CEO 81-12, CEO 78-2, CEO 77-168, CEO 77-46, and CEO 77-22.

QUESTION:

Does Article II, Section 8(e), Florida Constitution, prohibit you, a State Representative and attorney, from suing State agencies on behalf of clients of your law firm?

Your question is answered in the negative, subject to the conditions noted below.

In your letter of inquiry you advise that you are a member of the Florida House of Representatives and an attorney. You question whether you would be permitted under the Sunshine Amendment and the Code of Ethics for Public Officers and Employees to sue a State agency on behalf of a client of your law firm. You also question whether your partner may represent a client in a legal action against a State agency. You further advise that prospective agencies include the Department of Natural Resources, the Department of Environmental Regulation, a water management district, and possibly other State agencies under the control of the executive branch or Governor and Cabinet. Finally, you question whether you may represent a client in an administrative proceeding where you challenge agency action pursuant to Chapter 120, Florida Statutes.

Article II, Section 8(e), Florida Constitution, provides in relevant part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

This portion of the "Sunshine Amendment" also has been implemented through substantially similar language in Section 112.3141(1)(c), Florida Statutes.

A number of opinions have interpreted the Sunshine Amendment in the context of legislators/attorneys representing clients before government agencies. In CEO 84-6, we opined that this provision would not be violated were a State Representative to personally participate as an attorney in litigation and settlement negotiations against the State. However, in CEO 78-2, we opined that the language of Article II, Section 8(e), Florida Constitution, did not permit a legislator to personally represent as an attorney a client in formal administrative proceedings against a State agency pursuant to Chapter 120, Florida Statutes. See also CEO 81-12. Based upon the foregoing, it is our opinion that the Sunshine Amendment and Section 112.3141(1)(c), Florida Statutes, would permit you to personally represent as an attorney clients who are suing State agencies in judicial tribunals, but that you would not be able to personally represent for compensation clients who seek to challenge agency action pursuant to Chapter 120, Florida Statutes.

With regard to the agencies before which you may represent clients, you have advised that included may be the Department of Natural Resources, the Department of Environmental Regulation, a water management district, and possibly other State agencies under the control of the executive branch or Governor and Cabinet. With the exception of water management districts, all of the foregoing agencies are State agencies. Although there are no opinions directly on point which discuss whether a legislator may personally represent a client before a water management district, we previously have determined that the governing board members of the State's five water management districts are "local officers" for purposes of financial disclosure requirements. See CEO 77-46. Additionally, we have determined that legislators may personally represent clients before other agencies which would not be considered to be State-level agencies. See CEO 77-22, concerning a legislator representing a client before a county commission, and CEO 83-25, where a legislator represented a client before a county water authority. Therefore, we believe that the Sunshine Amendment and Section 112.3141(1)(c), Florida Statutes, would not prohibit you from personally representing clients before a water management district, as a water management district is not considered to be a State agency.

Concerning whether your partner could represent clients before State agencies, the Commission has previously determined that the Sunshine Amendment does not prohibit the partners or law firms of legislators from personally representing clients before state agencies. See CEO 77-168, where we advised that a legislator could not personally represent a client suing the State under the Environmental Protection Act of 1971, but that Article II, Section 8(e), Florida Constitution, did not prohibit a partner or other counsel associated with the legislator/attorney from representing a client where the legislator was prohibited from doing so. Our opinion in CEO 81-12 is also relevant to this issue.

Accordingly, you may personally represent clients in litigation involving State agencies where the proceedings are before judicial tribunals, but you may not represent clients before State agencies in administrative proceedings. Water management districts are considered to be local agencies and therefore not subject to this restriction. There would be no prohibition against your partner representing clients before State agencies in either judicial or administrative proceedings.