CEO 94-20 -- June 2, 1994

POSTEMPLOYMENT RESTRICTIONS

APPLICABILITY OF TWO-YEAR "REVOLVING DOOR"

RESTRICTION TO LEGISLATIVE EMPLOYEE

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

SUMMARY:

An employee of the Legislature, who was employed with the Legislature and then a State department in a Selected Exempt Service position prior to July 1, 1989 and who was an employee of the Legislature on July 1, 1989 but who subsequently left that employment, would be subject to the two-year "revolving door" prohibition of Section 112.313(9)(a)4, Florida Statutes, against representing clients before the Legislature if she were to become a Staff Director of a committee of the Legislature and then to leave employment with the Legislature. Neither her legislative or Selected Exempt Service employment prior to July 1, 1989 would exempt her from the prohibition under current law; nor would her legislative employment on July 1, 1989 exempt her under an amendment to the law that will become effective on January 1, 1995.

QUESTION:

Would you, an employee of the Legislature, be subject to the two-year "revolving door" prohibition against representing clients before the Legislature if you were to become a Staff Director of a committee of the Legislature and then to leave employment with the Legislature?

Under the circumstances presented, your question is answered in the affirmative.

In your letter of inquiry and telephone conversations with our staff, you relate that you have been employed in various positions with the State from January 1982 through the present, and you question whether this employment would constitute "employment prior to July 1, 1989" for purposes of an exemption to the two-year "revolving door" restriction contained in Section 112.313(9)(a), Florida Statutes. More specifically, you advise that from January 1982 through November 1982 you were employed as a research assistant with the Florida House of Representatives' Select Committee on Reapportionment. From November 1982 through August 1984 you were employed as a research assistant with the Office of the Speaker in the Florida House of Representatives. From August 1985 through August 1986, you relate, you were employed as a legislative intern with the Florida House of Representatives' Committee on Retirement, Personnel, and Collective Bargaining. From May 1988 to January 1989 you were employed in a Selected Exempt Service position as an Assistant General Counsel for the State Department of Banking and Finance. From January 1989 through September 1990 you were employed as an attorney and legal editor with the Joint Legislative Management Committee's Division of Statutory Revision; from September 1990 through December 1990 you served as a staff attorney with the Ethics Commission. Presently you are employed as a Legislative Analyst with the Senate Committee on Executive Business, Ethics and Elections. If you were now to become a Staff Director for a legislative committee, you question whether you would be subject to the two-year ban contained in Section 112.313(9)(a)4, Florida Statutes, if you then terminated your employment as a staff director and immediately became a legislative lobbyist.

The applicable statutory language is as follows:

(9) POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--

(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officials, and designated public employees.

2. As used in this paragraph:

a. "Employee" means:

(I) Any person employed in the executive branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.

* * *

(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senator Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title.

* * *

4. No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty in the amount equal to the compensation which the person receives for the prohibited conduct.

6. This paragraph is not applicable to a person employed by the Legislature or other agency prior to July 1, 1989, or persons who have reached normal retirement age as defined in s. 121.021(29), and who have retired under the provisions of chapter 121 by July 1, 1991. [Section 112.313(9), Florida Statutes.]

Section 112.313(9)(a)4 prohibits certain categories of legislative employees from personally representing another person or entity for compensation before the Legislature for a period of two years following vacation of position, unless their employment falls within the terms of the exemption contained in Section 112.313(9)(a)6.

Effective January 1, 1995, the "revolving door" restriction of Section 112.313(9)(a)4 will be applicable to two new groups of positions who will be defined as an "employee:" legislative branch employees in the Senior Management Service or the Selected Exempt Service (which includes certain Public Service Commission positions), and certain positions within the State University System. See Section 1, Committee Substitute for Senate Bill 1756. In addition, the bill makes the similar two-year restriction contained in Section 112.313(9)(a)3 (currently applicable to members of the Legislature and statewide elected officers) applicable to a new category of "appointed state officers."

We also note that, effective January 1, 1995, the exemption portion of Section 112.313(9)(a) will read:

6. This paragraph is not applicable to:

a. A person employed by the Legislature or other agency prior to July 1, 1989;

b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;

c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;

d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or

e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. [Sec. 1, CS/SB 1756.]

You advise that you believe the "grandfather" provision of (9)(a)6 is available to persons employed by the Legislature (or any other agency) in any position at any time prior to July 1, 1989. Thus, because you were employed by the Legislature in various positions prior to July 1, 1989, you submit that you are grandfathered-in for purposes of any postemployment restrictions. You also argue that the language used by the Legislature in Section 112.313(9)(a) is clear and unequivocal and, consequently, that there is no need for recourse to methods of statutory interpretation.

In our view, however, Section 112.313(9)(a)6, when read literally, creates a personal, lifetime exemption from the "revolving door" prohibitions of paragraph (9)(a), an exemption that applies regardless of when in the future one becomes employed in a "defined" position, regardless of when in the past one was employed by the Legislature or other agency (so long as it was prior to July 1, 1989), regardless of whether one's future employment is with the same agency as one's prior employment, and regardless of how often one passes through the revolving door between agency employment and private representation of clients before the same agency.

Read literally, none of the provisions of paragraph (9)(a) would apply to a person employed by the Legislature or other agency prior to July 1, 1989; this would include not only the two-year post employment "revolving door" prohibition for State employees (112.313(9)(a)4), but also the two-year post officeholding "revolving door" prohibition for members of the Legislature and statewide elected officers (112.313(9)(a)3) and the in office ban against legislators' compensated representations before State agencies (112.313(9)(a)3). As the term "agency" is not defined in paragraph (9)(a), but is defined in Section 112.312(2), Florida Statutes, to include State, regional, and local government entities in Florida, the exemption in (9)(a)6, read literally, applies to any person employed by not only the State, but also any regional or local government entity, prior to July 1, 1989. As a result, one's employment with a city in 1979 would exempt one from the prohibitions of paragraph (9)(a). Under the law as it will be amended, none of the prohibitions of paragraph (9)(a) will apply to a person who was employed in a "defined" position with the State University System or the Public Service Commission on December 31, 1994, or who held an appointive State office before January 1, 1995, if read literally.

In Ozark Corporation v. Pattishall, 185 So. 333, 337 (Fla. 1938), the court stated:

In construing a statute effect must be given to every part, if it be reasonably possible to do so. Each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.

And in Forehand v. Manly, 2 So.2d 864, 867 (Fla. 1941), the court stated:

One of the cardinal rules adopted by the Court is the legislative intent as gleaned from a consideration of the entire enactment.

Another basic rule of statutory construction is that legislative intent is the controlling factor and that no strictly literal interpretation should be made if such an interpretation is in contravention of the obvious intent of the Legislature. In State v. Sullivan, 116 So. 255, 261 (Fla. 1928), the court stated:

In statutory construction legislative intent is the pole star by which we must be guided, and this intent must be given effect even though it may appear to contradict the strict letter of the statute and well settled canons of construction. The primary purpose designated should determine the force and effect of the words used in the act, and no literal interpretation should be given that lends to an unreasonable or ridiculous conclusion or a purpose not designed by the lawmakers.

In Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 885 (Fla. 1972), the court observed that

the statutory scheme should be construed in light of the evil to be remedied and the remedy conceived by the Legislature to cure that evil.

Additionally, the propriety of adopting the interpretation which allows the statute to operate and which avoids an absurd result has been well established by Florida courts. In the case of McKibben v. Mallory, 293 So.2d 48, 51 (Fla. 1974), the court said:

If a statute is susceptible of two constructions one of which will give effect to it and the other which will defeat it, the former construction is preferred. [Citation omitted.] Construction of a statute which would lead to an absurd result should be avoided.

Section 112.313(9) was enacted in Chapter 89-380, Laws of Florida, and formerly was codified at Section 112.3141, Florida Statutes. That enactment had its origins in the Sunshine Amendment, Article II, Section 8(e), Florida Constitution, which contains a similar two-year "revolving door" prohibition against members of the Legislature and specifies that "[s]imilar restrictions on other public officers and employees may be established by law." The Florida Supreme Court has utilized an address given by the Sunshine Amendment's author, Governor Askew, to interpret another provision of the Sunshine Amendment in Williams v. Smith, 360 So.2d 417 (Fla. 1978). In an address to the Legislature, Governor Askew's remarks included the following expression of intent:

I strongly urge the Legislature to adopt comprehensive legislation to ensure that public officers and high ranking state employees do not use their public service careers, and contacts developed in that capacity, to later enrich themselves at the expense of the public.

In order to avoid the unintended consequences described above and effectuate restricting "high ranking state employees" from certain postemployment activities, we are of the opinion that the exemption in (9)(a)6 must relate to the employment that gives rise to the potential "revolving door" prohibition. To interpret the language of the exemption provision to be applicable to any person employed in any capacity by the Legislature or any agency prior to July 1, 1989, regardless of whether there is any relationship between that employment and the subsequent "high ranking" employment, would base the exemption on fortuitous circumstances and possibly exempt out more persons than are subject to the prohibition.

Examining your prior employment, we conclude that none of your employment experiences would serve to exempt you from this prohibition were you to become the Staff Director of a Committee and then leave employment with the Legislature.

When you left employment with the Department of Banking and Finance in January 1989, there was no limitation on your ability to represent clients before the Department. However, on July 1, 1989, the limitation of (9)(a)4 went into effect, giving rise to the question of whether at that time you became prohibited from representing clients before the Department for the period ending in January 1991. Under (9)(a)6, you were not, because you were employed by the Department prior to July 1, 1989. Your next employment, with the Joint Legislative Management Committee, was not in a "defined" position; when you left that employment in September 1990 you were not prohibited from representing clients before the Legislature for a two-year period. Similarly, because your current position is not a "defined" position, you may leave employment with the Senate and lobby the Legislature. If you become Staff Director of a standing or select committee, your position then would be a "defined" one. However, were you subsequently to leave that employment you would not be exempted from the "revolving door" prohibition, because that employment did not begin prior to July 1, 1989 (and, under the upcoming exemption, that employment did not exist on July 1, 1989).

You have provided information about the various versions of the "revolving door" prohibition that were considered by the Senate and the House of Representatives during the 1989 session. While they are helpful in understanding the process by which present-day Section 112.313(9) was enacted, they do not conclusively indicate that the exemption was intended to create a class of persons free to move from agency to agency, or from agency to private sector and back, without any "revolving door" consequences. It is clear that some versions of the proposed legislation prohibited almost every State employee from lobbying their former agency; in working its way through the process, the legislation gradually was narrowed down to restrict only the postemployment activities of certain designated State employees. It also appears that earlier versions of the legislation grappled with the effective date of the postemployment restriction. Rather than encourage the mass exodus of affected employees on or before an effective date, it appears that the Legislature opted to exempt some of those persons by enacting the language now found in Subsection 112.313(9)(a)6. Such an approach seems fair because the "high ranking" employees would not have been on notice when they first accepted their positions that they would face postemployment restrictions. Cf., Myers v. Hawkins, 362 So.2d 926 (Fla. 1978), holding that the Sunshine Amendment's in-office ban on legislators representing clients before State agencies did not apply to legislators who held office on its effective date. However, a person now contemplating employment in one of those designated positions, such as yourself, would be on notice of the applicability of the postemployment restrictions contained in Subsection 112.313(9)(a)4.

You also acknowledge that there were conflicting interpretations concerning this provision among legislative staff after the enactment of Chapter 89-380, Laws of Florida. Therefore, when the post-employment restrictions contained in Section 112.3141, Florida Statutes, were transferred into Section 112.313(9) in 1991, House staff attempted to clarify the issue by inserting the following language in the House Committee on Ethics and Elections' Bill Analysis of Committee Substitute for House Bill 417:

This section also prohibits agency employees from personally representing other persons or entities for compensation before the agency with whom he was employed for a period of two years following vacation of position. However, this section does not apply to persons who subsequently become employed with another agency or were employed with the Legislature or an agency on or before July 1, 1989; nor does it apply to any person who was employed by the state of Florida at any time prior to July 1, 1989 regardless of whether that person is still employed or may have had a break in employment and returned on or after July 1, 1989. [Emphasis supplied.]

In Ellsworth v. Insurance Co. of North America, 508 So.2d 395 (Fla. 1st DCA 1987), the court recognized that staff analyses of legislation should be accorded significant respect in determining legislative intent. However, in Ellsworth, the court also found that the trial court did not err in excluding from evidence a 1984 legislative Staff Summary and Analysis which, though purporting to explain the effect of 1984 amendments to a statute, was not determinative of legislative intent with respect to the 1981 version of the statute at issue. Therefore, under the rationale of Ellsworth, we are not persuaded that the after-the-fact insertion of wording in a 1991 staff analysis is determinative of legislative intent with respect to the 1989 statutory version of post-employment restrictions for certain State employees.

We also note that the courts in Florida have held that it is a well-recognized rule of statutory construction that exceptions or provisos should be narrowly and strictly construed. Samara Development Corp. v. Marlow, 556 So.2d 1097 (Fla. 1990); and Farrey v. Bettendorf, 96 So.2d 889 (Fla. 1957). Inasmuch as the language in Section 112.313(9)(a)6 could be considered an exception to the prohibition contained in Section 112.313(9)(a)4, Section 112.313(9)(a)6 must be construed strictly against one who attempts to take advantage of the exception. State v. Nourse, 340 So.2d 966, 969 (Fla. 3d DCA 1976). We find particularly noteworthy the Court's discussion of the issue in Farrey, where it held:

The Legislature of this State in its wisdom determined that the class of persons included in the proviso above quoted may recover damages for injuries received when riding as a guest in an automobile upon proof of simple negligence rather than gross negligence. We do not believe, however, the Legislature intended to extend the proviso to the extent of allowing recovery upon such degree of proof to any of the described class except those children or students being transported to or from regular school sessions conducted by such schools or places of learning. The office of a proviso in a statute is not to enlarge or extend the act of which section it is a part but rather to be a limitation or a restraint upon the language which the Legislature has employed. A proviso is to be strictly construed and limited to objects fairly within its terms, or to qualify or restrain its generality. Applying the rule of strict construction, we must conclude that the proviso was not intended to encompass a multitude of situations nor enlarge its operation to include classes of people or situations not reasonably contemplated nor intended to be included by that body of the government in which this exclusive jurisdiction rests. The common man would comprehend the limitation as being confined to those instances where, as occurs daily throughout the land, children and other students are transported to a school session in their respective schools or places of learning in the morning and returned later in the day from such school sessions to their respective abodes. Obviously it was not the purpose of the lawmakers to extend the proviso to extra-curricular functions such as basketball and football games, school parties, plays and an unknown and unlimited number of similar activities. Supra, at 893. [Emphasis added.]

With regard to Section 112.313(9)(a), based on the rationale of Farrey, we do not believe that the Legislature intended to exempt or "grandfather-in" generations of public employees from the two-year postemployment restriction, regardless of their position. To conclude otherwise would permit the exception to swallow the rule and would not effectuate the legislative intent behind the enactment of Section 112.313(9)(a).

Your question is answered accordingly.