CEO 96-33 -- December 3, 1996

POST-EMPLOYMENT RESTRICTIONS

FORMER DEPUTY COMPTROLLER REPRESENTING CLIENTS

BEFORE GOVERNOR AND CABINET

To: Joseph A. Sole, Esquire (Tallahassee)

SUMMARY:

A former Deputy Comptroller with the Department of Banking and Finance is not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients before the Governor and Cabinet or from lobbying individual members of the Cabinet and their staff for two years after leaving State employment. However, the former Deputy Comptroller would be prohibited from appearing before the Comptroller individually or any member of his staff. The former Deputy=s Aagency@ does not extend to the Governor and Cabinet, even though the Comptroller serves as a member of that collegial body.

QUESTION:

Does Section 112.313(9)(a)6, Florida Statutes, prohibit you, a former Deputy Comptroller for the Department of Banking and Finance, from representing another person or entity for compensation before the Governor and Cabinet for two years after leaving State employment?

Your question is answered in the negative, based on your specific situation.

Through your letter of inquiry and discussions with our staff, we are advised that in January 1995, you began employment with the Department of Banking and Finance as Deputy Comptroller. This position, classified as Senior Management Service, oversaw the Divisions of Accounting and Auditing, Finance, and Information Systems. Additionally, you relate that your duties with the Department did not include Cabinet matters, that you did not interface with other Cabinet members or their staff on Cabinet issues, and that you did not supervise or oversee the Comptroller=s Cabinet aides. You are no longer employed by the Department and now question whether you can appear before the Governor and Cabinet on behalf of clients who retain you to represent their interests in matters coming before the Governor and Cabinet.

The Code of Ethics for Public Officers and Employees provides in pertinent part:

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. [Section 112.313(9)(a)4, Florida Statutes (1995).]

This statute prohibits certain categories of employees, such as those who were in the Senior Management Service, from personally representing another person or entity for compensation before their former agencies for a period of two years following vacation of position. The "grandfathering" provisions contained in Section 112.313(9)(a)6 are inapplicable, since your employment with the Department began in January 1995, long after the operative July 1, 1989 date contained in Section 112.313(9)(a)6.

In defining the Aagency@ of a former State employee for purposes of Section 112.313(9)(a)4, we have endeavored in our past opinions to restrict that 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. See CEO 96-18, CEO 95-14, CEO 94-34, CEO 94-29, CEO 93-14, and CEO 91-49. Although your high-ranking position would preclude you from representing any client before the entire Department of Banking and Finance for two years, we do not believe that your disqualification would extend to the Governor and members of the Cabinet, even though the Comptroller serves as a member of that collegial body. In our view, this approach is appropriate because your duties as Deputy Comptroller did not extend to Cabinet affairs, either internally within the Department or externally with other members of the Cabinet. Therefore, you would not be prohibited from representing clients before the Governor and Cabinet for two years after leaving the Department of Banking and Finance. However, because your Aagency@ for purposes of this provision does extend to the entire Department, you could not personally lobby the Comptroller or anyone on his staff for the duration of the two-year period.

Your inquiry is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 3, 1996 and RENDERED this 5th day of December, 1996.

________________________________

Mary Alice Phelan

Chair