POSTEMPLOYMENT RESTRICTIONS
FORMER LEGISLATIVE STAFF DIRECTOR EMPLOYED BY
OFFICE OF STATE COURTS ADMINISTRATOR
To: Name withheld at person's request (Tallahassee)
SUMMARY:
A former staff director of a standing committee of the Florida Senate is not prohibited by Section 112.313(9), Florida Statutes, from representing the Office of the State Courts Administrator before the Florida Legislature within two years after leaving employment with the Legislature. CEO 10-14 is distinguished.
QUESTION:
Would you, a staff director for a standing Committee of the Florida Senate, be prohibited by Section 112.313(9), Florida Statutes, from representing the Office of the State Courts Administrator before the Legislature for two years after leaving your current employment?
Your question is answered in the negative.
You state that you are currently a staff director for a standing committee of the Florida Senate. Further, you relate that you have applied for the position of Director of Community and Intergovernmental Relations for the Office of the State Courts Administrator (OSCA).1 A core function of the OSCA position, you state, is representing the State courts system before the Legislature, and you would be required to register as a Legislative lobbyist.
Section 112.313(9), Florida Statutes, provides in relevant part:
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 officers, appointed state officers, and designated public employees.
2. As used in this paragraph:
a. "Employee"means:
(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 Senate 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.
c. "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control.
3. 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.
4. An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, may not 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. [Emphasis supplied.]
Your current position as a staff director of a standing committee of the Legislature is specifically identified as a position encompassed within Section 112.313(9)(a)2.a.(IV), Florida Statutes, and your OSCA position would require "representation," as the term is defined in Section 112.312(22), Florida Statutes, before the Legislature. The Commission has said that the former agency of a Legislative employee is the Legislature—not merely the chamber with which he or she was employed. See CEO 87-2 and CEO 00-20. Therefore, absent applicability of an exception, you would be prohibited from representing another person or entity for compensation before the Legislature for a period of two years. The statute makes an exception for state employees who become employed by "another agency of state government." Therefore, the issue is whether the Office of State Courts Administrator is "another agency of state government" pursuant to the exception; an issue we have not previously had occasion to consider.
The plain language of the exception requires we find that your proposed employment would not be prohibited. OSCA unquestionably is an agency, not a private entity, and unquestionably it exists at the State, not the local, level of government. We are aware that Section 112.313(9)(a)2. defines "state agency" to mean state entities over which the Legislature has plenary budgetary and statutory control. However, the term "state agency" is not used in the subparagraph governing post-employment restrictions for covered legislative employees; rather the term is used only in connection with the provision prohibiting Legislators from representing others for compensation while in office. See Section 112.313(9)(a)3., Florida Statutes. Well-settled principles of statutory construction indicate that the Legislature's use of different terms in different portions of the same statute is strong evidence that different meanings were intended.2
Nor have we overlooked CEO 10-14, in which we opined that an Assistant State Attorney was not subject to the two-year prohibition. Our finding there was based on whether the Assistant State Attorney was an "employee" as the term is defined in the statute, thus it concerned the prohibition, not the exception, and is inapposite here. We also note that unlike the scenario in CEO 10-14, you are not seeking employment in the private sector, but, rather, are seeking employment in the public sector. We believe if a specifically covered Legislative employee could represent clients for compensation before the Legislature on behalf of, for example, the Department of Agriculture, but not the judicial branch of state government (OSCA), a result not intended from the language of the exemption would occur.
Finally, as a matter of discerning Legislative intent, it appears to us that allowing an exception for employees who take positions in other state agencies does not run counter to the goals of the post-employment restriction. The evil to be guarded against here primarily is influence peddling and the use of public position to create opportunities for personal profit once an official leaves his or her position. See CEO 11-19, CEO 11-10, and CEO 00-9. The potential for a conflict of interest or for the exercise of undue influence to the benefit of a private organization or a particular local government entity with an insular constituency does not exist so long as the employee remains part of the enterprise of State level government. To suggest that the judicial branch, and in this case (OSCA), is not part of the enterprise of State government within the meaning contemplated by the post-employment exemption ("another agency of state government") contained in Section 112.313(9)(a)4., Florida Statutes, defies the plain language of the statute.
Please note that this opinion does not address ethical standards provided in the rules of the Senate and referenced in Section 112.313(9)(b), Florida Statutes, since we do not administer those standards of conduct. For advice about the appropriate standards of conduct under these rules, please contact your Senate counsel.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 2, 2011 and RENDERED this 7th day of December, 2011.
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Robert J. Sniffen, Chairman
[1]On July 1, 1972, the Office of the State Courts Administrator was created with initial emphasis on the development of a uniform case reporting system on activity in the judiciary in the preparation of its operating budget and in projecting the need for judges and specialized court divisions. The State Courts Administrator serves under the direction of the Chief Justice of the Supreme Court and the other six justices. Additionally, the State Courts Administrator serves as the liaison between the court system and the legislative branch, the executive branch, the auxiliary agencies of the Court, and national court research and planning agencies. www.flcourts.org.
[2]State v. Bradford, 787 So. 2d 811 (Fla. 2001); State v. Marks, P.A., 698 So. 2d 533 (Fla. 1997).