CEO 00-7 -- March 17, 2000

SUNSHINE AMENDMENT

FORMER MEMBERS OF LEGISLATURE SERVING AS SECRETARY, DIVISION DIRECTOR, DEPUTY SECRETARY, AND ASSISTANT SECRETARY OF EXECUTIVE BRANCH DEPARTMENTS

TO: Mr. William G. Bankhead, Secretary, Department of Juvenile Justice; Mr. Robert G. Brooks, M.D., Secretary, Department of Health; Mr. Charles Williams, Director, Division of Workers' Compensation, Department of Labor and Employment Security; Mr. Luis Morse, Deputy Secretary, Department of Elder Affairs; Mr. Carl Littlefield, Assistant Secretary for Developmental Services, Department of Children and Families (Tallahassee)

SUMMARY:

Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, do not prohibit the Secretary of the Department of Juvenile Justice, the Secretary of the Department of Health, the Director of the Division of Workers' Compensation, the Deputy Secretary of the Department of Elder Affairs, or the Assistant Secretary for Developmental Services, Department of Children and Families, who have been members of the Legislature within the last two years, from appearing before the Legislature or legislators in the course of carrying out their official duties. CEO 81-57 and CEO 90-4 are receded from.

QUESTION:

Given the restrictions of Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, under what circumstances may the Secretary of the Department of Juvenile Justice, the Secretary of the Department of Health, the Director of the Division of Workers' Compensation, the Deputy Secretary of the Department of Elder Affairs, or the Assistant Secretary for Developmental Services, Department of Children and Families, who have been members of the Legislature within the last two years, appear before the Legislature or legislators in the course of carrying out their official duties?

Your question is answered below.

Through your letter of inquiry, we are advised that William G. Bankhead serves as the Secretary of the Department of Juvenile Justice, Robert G. Brooks, M.D., serves as the Secretary of the Department of Health, Charles Williams serves as the Director of the Division of Workers' Compensation, Department of Labor and Employment Security, Luis Morse serves as the Deputy Secretary of the Department of Elder Affairs, and Carl Littlefield serves as the Assistant Secretary for Developmental Services, Department of Children and Families. All of you have been members of the Legislature within the last two years, which, given the restrictions of Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, leads you to inquire about the circumstances under which you may appear before the Legislature or legislators in the course of carrying out your official duties.

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

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. 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. Similar restrictions on other public officers and employees may be established by law. [E.S.]

Section 112.313(9)(a)3, Florida Statutes, reiterates this standard, providing as follows:

No member of the Legislature, appointed state officer, 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 2 years following vacation of office. No member of the Legislature shall personally represent another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit. [E.S.]

Since the constitutional prohibition went into effect, in 1977, we have rendered two opinions interpreting it in the context of former members of the Legislature who assumed positions in the Executive Branch. In CEO 81-57, we concluded that this provision would prohibit a former State Senator from accepting employment as Director of the Division of Hotels and Restaurants in the Department of Business Regulation within two years after leaving office, where that employment would require him to engage in lobbying activities before the Legislature in behalf of the Division. However, we concluded that the provision would not prohibit him from accepting such employment if the duty of lobbying were transferred to another person. We also were of the opinion that Article II, Section 8(e) would not prohibit him from appearing before a committee or subcommittee of the Legislature at the request of the committee or subcommittee chairman as a witness or for informational purposes.

In CEO 90-4, we examined the situation of a former member of the Florida House of Representatives who served as General Counsel to the Governor. Based on CEO 81-57, we concluded that Article II, Section 8(e), did not prohibit him from reviewing legislation, advising the Governor on legislative matters, and supervising members of the Governor's staff who were registered to lobby the Legislature, so long as he did not personally represent the Governor before the Legislature. As in CEO 81-57, we concluded that he would not be prohibited from appearing before a committee or subcommittee of the Legislature in his capacity as General Counsel to the Governor when requested to do so by the chairman of the committee or subcommittee where authorized by legislative procedures. Answering a question that had not been presented in CEO 81-57, we concluded that he would not be prohibited from appearing before an individual member of the Legislature at the member's request in his capacity as General Counsel pertaining to a legislative matter of interest to the Governor, to the extent that he would be providing a bona fide, good faith response to a request for information on a specific subject, not solicited directly or indirectly.

A significant issue in both opinions was the question of whether the prohibition of the Sunshine Amendment included governmental entities through its use of the terms "another person or entity" to describe who a former legislator could not represent before the Legislature within the two-year period. This issue was the primary focus of CEO 81-57, where we examined both the context of the language used in the Sunshine Amendment and extrinsic evidence of the intent behind the prohibition. We noted:

The terminology of the provision ‑‑ 'another person or entity' ‑‑ does not indicate that the provision would apply only to representations of private or nongovernmental entities. By use of the term 'person,' as distinct from an 'entity,' we believe the Amendment intended to include only natural persons, although the word 'person' may include governmental bodies in some instances. City of St. Petersburg v. Carter, 39 So. 2d 804 (Fla. 1949). The term 'entity' as generally defined is broad enough to include both private and governmental organizations. For example, Webster's Third New International Dictionary (1966) defines 'entity' at p. 758 as 'something that has objective or physical reality and distinctness of being and character [;] something that has a unitary and self‑contained character.' An entity may be a corporate entity, a legal entity, a public entity, or a sovereign entity, among others. See 14A Words and Phrases, 395.

In addition, we note that the Legislature has defined the term 'agency' for purposes of the Code of Ethics for Public Officers and Employees as meaning

any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [E.S.] [Section 112.312(2), Florida Statutes (1979).]

Finding the extrinsic evidence of intent on this issue to be inconclusive, we concluded that the purposes served by the constitutional prohibition would be apply regardless of whether a former legislator were being paid to lobby for a public entity or a private entity:

Unfortunately, these remarks [from Governor Askew's 1977 address to the Legislature] do not address the question of whether governmental entities were contemplated by the Amendment, but merely reiterate that one's public service career and contacts developed in that capacity should not be used to enrich oneself at the expense of the public. This expression of intent, we believe, would apply equally whether one represented a private or a public entity after leaving office.

It is apparent from the explanatory flyer and from the language of the Constitution that the provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. In the context of the Legislature, the provision seeks to preserve the integrity of the legislative process by ensuring that decisions of members of the Legislature will not be made out of regard for possible employment as lobbyists. Since legislative decisions affect those in the public sector as well as those in the private sector, it would seem to be equally important that legislative decisions not be colored by regard for future lobbying opportunities in behalf of public entities.

In addition, the provision recognizes that the influence and expertise in legislative matters gained through a legislator's public service would give the legislator a high value and a competitive advantage within the marketplace for lobbyists. These opportunities for personal profit exist within both the private and the public sector.

We adhered to this conclusion in CEO 90-4, stating:

With respect to the fourth criterion, we are of the opinion that in the present context the Governor (or the Office of the Governor) constitutes 'another person or entity' within the contemplation of the Sunshine Amendment. In CEO 81-57 we concluded that the Sunshine Amendment's prohibition includes the representation of both public and private sector entities and that there are substantial reasons for not making such a distinction.

Although we recognize that in representing a governmental entity before the Legislature one ultimately is representing the interests of the people whom that governmental unit represents, we also recognize that public agencies represent a variety of interests, some of which compete with the interests of other public entities for the Legislature's attention. While the cities may want a particular bill to include a specific provision, the counties may not feel that such a provision is in their best interests. Although a local taxing authority may want certain powers included in its special act, the city or county in which the authority is located may have a different preference. These competing, but public, interests are represented before the Legislature, with each seeking the best representation available.

As expressed in Article II, Section 8, the overriding purpose of the Sunshine Amendment is to assure the people's right to secure and sustain the public trust exercised by public officials against abuse. We do not believe that the public trust is enhanced by a decision which would permit a legislator to leave the Legislature and set up a lobbying office through which he would personally represent cities, counties, or special taxing districts for a fee. In effect, we would be saying that a former legislator may lobby for whatever compensation he can obtain, so long as he limits his clientele. As noted in CEO 81-57, we believe that there is a market for public sector lobbyists as well as for those who lobby for private sector interests.

Clearly, your position and responsibilities as General Counsel for the Governor are very different from those of a lobbyist in private practice. However, under the criteria provided in the Sunshine Amendment, we do not believe that your situation may be distinguished from that of a former legislator who wishes to open a lobbying firm to represent only governmental agencies, in such a way as to allow you to continuously and personally engage in lobbying activities on behalf of the Governor.

We remain persuaded that this is the appropriate interpretation of the terms "person or entity." In addition to the reasons stated in the previous opinions, we note that the same phrase is used in the second sentence of Article II, Section 8(e)--the in-office ban against members of the Legislature representing "another person or entity" before State agencies other than the courts. We can think of no reason why the same phrase should not be interpreted identically when it is used in two adjacent sentences in the Constitution that were drafted by the same persons and were adopted at the same time. Further, we note that we have applied the in-office ban to representing governmental entities before Executive Branch agencies, advising in CEO 85-83 that Article II, Section 8(e), would prohibit a State Representative from personally contacting State agencies other than judicial tribunals in behalf of municipal and county governmental clients that were seeking grants, and advising in CEO 81-12 that a State Representative could not personally represent a municipal housing authority before State agencies other than judicial tribunals.

Nevertheless, in construing Article II, Section 8, we must keep in mind the following admonition of the Florida Supreme Court:

In November 1976, the people of Florida adopted article II, section 8, Florida Constitution, commonly referred to as the 'Sunshine Amendment.' In construing this section, it is our duty to discern and effectuate the intent and objective of the people. In re Advisory Opinion to the Governor, 243 So.2d 573 (Fla. 1971); State ex rel. McKay v. Keller, 140 Fla. 346, 191 So. 542 (1939). The spirit of the constitution is as obligatory as the written word. Amos v. Matthews, 99 Fla. 1, 126 So. 308 (1930). The objective to be accomplished and the evils to be remedied by the constitutional provision must be constantly kept in view, and the provision must be interpreted to accomplish rather than to defeat them. State ex rel. Dade County v. Dickinson, 230 So.2d 130 (Fla. 1970). A constitutional provision is to be construed in such a manner as to make it meaningful. A construction that nullifies a specific clause will not be given unless absolutely required by the context. Gray v. Bryant, 125 So.2d 846 (Fla. 1960). [Plante v. Smathers, 372 So.2d 933, at p. 936 (Fla. 1979).]

We previously have stated that the prohibition of Article II, Section 8(e) establishes the principle that one's public service career and contacts developed in that capacity should not be used to enrich oneself at the expense of the public, that the provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office, and that, in the context of the Legislature, the provision seeks to preserve the integrity of the legislative process by ensuring that decisions of members of the Legislature will not be made out of regard for possible employment as lobbyists. In our view, these are "the objective to be accomplished and the evils to be remedied" by Article II, Section 8(e). In our view, also, these objectives can be met without precluding further public service by former members of the Legislature.

In CEO 81-57 we advised that Article II, Section 8(e), would not preclude a former legislator who has been elected to another public office from lobbying the Legislature as part of his or her official responsibilities. There, we noted:

In that situation, the people have selected the former legislator through an electoral process and there simply is not the opportunity for use of prior public office to acquire lucrative employment as a lobbyist. Nor would the former lobbyist be peddling the influence he has gained through public service within the marketplace for lobbyists. We do not believe that an elected official is representing 'another person or entity' when approaching the Legislature in the fulfillment of his public duties.

Here, the subject former members of the Legislature have continued their public service by moving into the Executive Branch of State government, either as public officers or as full-time public employees with substantial administrative responsibilities, for whom appearing before the Legislature is an incidental responsibility of their current public position. The circumstances here do not involve the use of their public service careers and contacts developed in that capacity to enrich themselves at the expense of the public, do not present even the appearance of influence peddling and the use of public office to create opportunities for personal profit through lobbying after leaving the Legislature, and do not involve the possibility that their decisions as members of the Legislature were made out of regard for possible employment as lobbyists. In short, the situation simply does not come within the intent of the prohibition.

While we fully respect the concerns that led to the results of our past opinions, we believe that the Constitution can be construed, under the circumstances presented here, in such a way as to allow members of the Legislature to continue their public service within the Executive Branch, as public officers or full-time employees with substantial administrative responsibilities for whom appearing before the Legislature is an incidental responsibility, while still meeting the objectives to be accomplished and prohibiting the evils that Article II, Section 8(e) sought to remedy.

Accordingly, under the circumstances presented we recede from opinions CEO 81-57 and CEO 90-4 and find that Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, do not prohibit the Secretary of the Department of Juvenile Justice, the Secretary of the Department of Health, the Director of the Division of Workers' Compensation, the Deputy Secretary of the Department of Elder Affairs, or the Assistant Secretary for Developmental Services, Department of Children and Families, who have been members of the Legislature within the last two years, from appearing before the Legislature or legislators in the course of carrying out their official duties. This opinion relates only to the particular circumstances and responsibilities of the individuals who have made this request; if there is any question about the applicability of the law to other individuals in different circumstances, we suggest that another opinion be sought.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 16, 2000 and RENDERED this 17th day of March, 2000.

__________________________

Peter M. Dunbar

Chair