CEO 07-6 -- March 7, 2007

POST-OFFICEHOLDING

FORMER COUNTY COMMISSIONER ATTENDING MEETINGS

SUMMARY:

A former county commissioner is not prohibited by Section 112.313(14), Florida Statutes, from merely attending, in behalf of a client, gatherings which are not regular meetings of the county commission and which are not advertised or noticed under the Sunshine Law; however, the former commissioner is prohibited from making comments in behalf of a client at such a gathering if a county commissioner or one or more enumerated county employees is present. CEO 92-3 and CEO 06-22 are referenced.¹

QUESTION 1:

May you, a former county commissioner, attend for compensation in behalf of another person or entity, within two years of vacating office, meetings or gatherings, not noticed or advertised as meetings of the county commission, which also are attended by county commissioners, commissioners' aides, the county manager, or any of the immediate support staff of the county manager, provided you do not address the event panel or make comments while attending?

Question 1 is answered in the affirmative.

By your letter of inquiry, additional written information provided by you to our staff, our taking notice of our previous opinion to you (CEO 06-22), and a telephone conversation between you and our staff, we are advised that you left office as a Brevard County Commissioner in November 2006 and that you have additional questions about the application of Section 112.313(14), Florida Statutes, to you if you attend meetings in behalf of a client. More specifically, you advise that the meetings could be arranged by anyone (e.g., the press), would contain a question and answer panel, would be for the purpose of discussing issues of interest to County government and others (e.g., issues concerning development of affordable housing), might or might not be open to the public, would not be advertised or noticed as a meeting of the County Commission, but would be attended by one or more County Commissioners, Commissioners' aides, the County Manager, or immediate support staff of the County Manager.

Section 112.313(14), Florida Statutes, provides in part:

(14) LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.—A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the government body or agency of which the person was an officer for a period of 2 years after vacating that office. For purposes of this subsection:

(a)The “government body or agency” of a member of a board of county commissioners consists of the commission, the chief administrative officer or employee of the county, and their immediate support staff.

Previously, in CEO 06-22 (Question 2), in reliance on our decision in CEO 92-3 (Question 1),² we advised that you would be prohibited by the statute from merely attending County Commission meetings or workshops in behalf of another for compensation, reasoning that your attendance, even without speaking or asking questions (attending merely as an observer for your client), would constitute "representation" within the meaning of Section 112.312(22), Florida Statutes.³ However, we do not find that you would be prohibited from merely attending the meetings described in your instant inquiry, provided that the meetings are not noticed or advertised as meetings or workshops of the County Commission,⁴ because we do not find that such privately orchestrated or informal gatherings constitute an "agency proceeding" within the meaning of Section 112.312(22).

Question 1 is answered accordingly.

QUESTION 2:

Would you be prohibited by Section 112.313(14) from making comments at such meetings in behalf of a client, where one or more County Commissioners or County employees noted above (persons holding a County position identified in CEO 06-22) is in attendance?

Question 2 is answered in the affirmative.

In CEO 92-3 (Question 2), we opined that a similar restriction prohibited a former legislator from asking questions about a legislative proceeding or proposed legislation from a legislative staff member for informational purposes only, in behalf of another for compensation, reasoning that such questioning came within the applicable definition of "representation,"⁵ and stating:

. . . 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.

Our decision in CEO 92-3 recognizes the reality and substance of what constitutes a "communication," irrespective of the label (e.g., "informational question," "rhetorical statement," "statement to a panel," "comment to an entire audience") that might attach to it. In your situation, such comments by you, if made in behalf of another person or entity for compensation, would constitute personal communications made with an officer or enumerated employee of your former government body or agency, if such a person was in attendance at the meeting.

Question 2 is answered accordingly.

QUESTION 3:

When is your attendance at an agency proceeding, or your personal communication with an officer or employee of your former government body or agency, "in behalf of another person or entity for compensation?"

Question 3 results from a portion of your inquiry that states:

It is my understanding my limitation is if I am 'compensated' when I attend. If the subject was 'less taxes' at a budget meeting I could speak on behalf of lowering taxes or less government. As long as I am not 'compensated' I may attend any meeting regardless of who is on the panel or in attendance. Is that correct?

We are unable to definitively opine in a universal or comprehensive manner as to Question 3 because an answer regarding a given situation necessarily is dependent on detailed facts and evidential nuances not susceptible to treatment in the context of a request for an advisory opinion. Those circumstances would include but would not be limited to facts concerning County interests, County action/inaction, or potential County action/inaction regarding particular subject matters or issues of concern to one's client. We caution that, in our view, the prohibition could apply to situations in which a former officer's client (a person or entity compensating the former officer) pays the former officer to monitor, deal with, or handle his or its affairs regarding County government, even though the former officer also personally has interests or affairs regarding County government as to the same or similar subject matters or issues that concern the client.⁶

Question 3 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 2, 2007 and RENDERED this 7th day of March, 2007.

______________________________
Norman M. Ostrau, Chairman

^[1]For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us