CEO 92-3 -- January 24, 1992

 

SUNSHINE AMENDMENT

 

FORMER STATE REPRESENTATIVE MONITORING

LEGISLATIVE MEETINGS AND OBTAINING INFORMATION FROM

LEGISLATIVE STAFF

 

To:      Frank S. Messersmith, Former State Representative (Tallahassee)

 

SUMMARY:

 

A former State Representative is prohibited from attending and monitoring legislative committee meetings or sessions and from asking questions about a proceeding or proposed legislation from a legislative staff member, even for informational purposes only, when done in behalf of another for compensation during the two years after leaving office.  Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a), Florida Statutes, prohibit a member of the Legislature from personally representing another person or entity for compensation before the Legislature for a period of two years after leaving office.  The term "represent" is defined in Section 112.312(22), Florida Statutes, to include physical attendance in an agency proceeding and personal communications with the officers or employees of an agency, which would be involved in attending and monitoring legislative committee meetings or sessions and in asking questions about a proceeding or proposed legislation from a legislative staff member, even for informational purposes only.

 

QUESTION 1:

 

Are you, a former State Representative, prohibited from attending and monitoring legislative meetings in behalf of another, for compensation?

 

This question is answered in the affirmative.

 

In your letter of inquiry you advise that you formerly served as a member of the Florida House of Representatives.  You question whether you are prohibited from attending and monitoring legislative meetings in behalf of another, for compensation, for two years after leaving office.

The Sunshine Amendment 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.]

 

This prohibition is incorporated within the Code of Ethics for Public Officers and Employees, in identical terms, as Section 112.313(9)(a)3, Florida Statutes (1991) (formerly, Section 112.3141(1)(c), Florida Statutes).

You advise that attending and monitoring the proceedings of meetings does not entail any identification of a client by you or require you to discuss the issue with a legislator.  Even to the extent that this simply involves attending publicly noticed legislative committee meetings or sessions of a legislative house in order to advise your client of what occurred at the meetings, however, we conclude that such an activity would constitute the representation of another before the Legislature.

For purposes of Article II, Section 8(e), and Section 112.313(9)(a)3, the terms "represent" and "representation" are defined to mean

 

actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client.  [Section 112.312(22), Florida Statutes (1991), formerly Section 112.312(17), Florida Statutes.]

 

Although attending legislative meetings would not involve writing letters, filing documents, or personal communications with legislative personnel, the definition of "representation" also specifically includes "actual physical attendance on behalf of a client in an agency proceeding."  We conclude that attending and monitoring legislative meetings would constitute actual physical attendance in a legislative proceeding.

We recognize that it can be argued that the phrase "in an agency proceeding" contemplates a degree of participation in the proceeding, with an intent to influence the agency's action, as opposed to simply sitting as a member of the audience at a meeting or hearing in order to observe the proceedings, just as any member of the public is entitled to do.  Further, had the definition used the phrase "at an agency proceeding," it would have more clearly encompassed the action of observing the agency proceeding.

However, especially when contrasted with the other two activities that comprise this definition, both of which expressly entail communicative actions, whether written or oral, it appears to us that attendance at a legislative meeting to observe the proceedings falls within the definition of "represent."  If the intent were to prohibit only activities that involved a form of active communication from the former officeholder, the definition's inclusion of "personal communications," "the writing of letters," and "the filing of documents" would have sufficed, and the addition of "actual physical attendance . . . in an agency proceeding" would have been unnecessary.  Instead, the definition specifically mentions attendance as an additional form of representation and, therefore, must have been intended to refer to action other than writing letters, filing documents, or personal communications.  Such an interpretation is not meaningless, as we can envision instances where actual physical attendance without any form of active personal communication can have the effect of representing the intentions or interests of another person or entity.

Accordingly, we find that you are prohibited from attending and monitoring legislative meetings on behalf of another for compensation during the two-year period after leaving office as a State Representative.

 

QUESTION 2:

 

Are you, a former State Representative, prohibited from asking questions about a proceeding or proposed legislation from a legislative staff member for informational purposes only, in behalf of another for compensation?

 

This question is answered in the affirmative.

 

You also question whether you are prohibited from asking questions about a proceeding or proposed legislation from a legislative staff member for informational purposes only, as long as this does not involve a legislator.  As noted above, the definition of "represent" specifically includes "personal communications made with the officers or employees of any agency on behalf of a client."  Because asking questions from a legislative staff member would constitute personal communications with an employee of your former agency and because your questions would be on behalf of another, this action would constitute representing another before the Legislature.

Asking questions for informational purposes only may not necessarily involve any communication intended to influence legislative action, but it appears to us that this is a blanket prohibition, designed to preclude a former agency official from being compensated for actions in behalf of another that involve the agency.  In addition, we note that many questions, in the guise of asking for "information," actually could be intended to communicate a client's position or affect legislation.

Accordingly, we find that you are prohibited from asking questions about a proceeding or proposed legislation from a legislative staff member even if for informational purposes only, in behalf of another for compensation during the two-year period after leaving office as a State Representative.