CEO 00-20 -- October 10, 2000
POSTEMPLOYMENT RESTRICTIONS
FORMER LEGISLATOR REPRESENTING CLIENTS BEFORE PUBLIC SERVICE COMMISSION AND ENERGY 2020 STUDY COMMISSION
To: Name withheld at person's request (Tallahassee)
SUMMARY:
A former House member is not prohibited by Article II, Section 8(e), Florida Constitution, or Section 112.313(9)(a)3., Florida Statutes, from personally representing clients for compensation before the Public Service Commission or the Energy 2020 Study Commission within two years of vacation of office, inasmuch as the PSC and the Study Commission are separate government bodies or agencies from the Legislature (the member's former body/agency). However, the member is prohibited from representing clients before the Legislature; nevertheless, the prohibition is not extended via the member's House service to others in his law firm. CEO's 87-2, 92-3, 00-3, and 00-11 are referenced.
QUESTION 1:
Is a former Legislator prohibited by Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3., Florida Statutes, from personally representing clients for compensation before the Public Service Commission and the Energy 2020 Study Commission for a period of two years following vacation of office?
Your question is answered in the negative.
By your letter of inquiry we are advised that . . . ("member" or "Representative") serves as a member of the Florida House of Representatives and that he is not seeking re-election.[1] In addition, we are advised that the Governor, by executive order,[2] created the Energy 2020 Study Commission ("Study Commission"); that it is composed of seventeen members, thirteen of whom are appointed by the Governor, two of whom are appointed by the President of the Senate, and two of whom are appointed by the Speaker of the House of Representatives; that the Chair of the Public Service Commission ("PSC") and the Public Counsel are designated as non-voting members of the Study Commission; that the Study Commission is directed to determine what Florida's electric energy needs will be over the next twenty years and how best to supply the needs in an efficient, affordable, and reliable manner which will ensure adequate electric reserves; that based on its findings the Study Commission will recommend appropriate electric energy policies for the State, including statutory changes, if necessary; and that reimbursement for travel, per diem, and staff expenses for the Study Commission's activities are provided by appropriation to the PSC.
Further, we are advised that the law firm which employs the member has clients who are regulated by the PSC, that the clients may request that the member represent their interests before the PSC, and that the member may be requested to represent clients before the Study Commission. Under this scenario, you advise, the member seeks our opinion as to whether Article II, Section 8(e) and Section 112.313(9)(a)3. prohibit his personal representation of clients for compensation before the PSC and the Study Commission within two years following his vacation of his House seat.
The relevant restrictions[3] provide:
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 and officer or member for a period of two years following vacation of office. . . . [Article II, Section 8(e), Florida Constitution.]
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. . . . [Section 112.313(9)(a)3., Florida Statutes.]
While we find that these provisions would prohibit the member's personal representation[4] for compensation of clients before the Legislature or Legislative staff within two years of his vacation of office, we do not find that the prohibition extends to his representation before the PSC or the Study Commission, inasmuch as the Legislature (and not the PSC or the Study Commission) is his office or agency for purposes of the restriction. Notwithstanding that Section 350.001, Florida Statutes, provides that "[t]he Florida Public Service Commission has been and shall continue to be an arm of the legislative branch of government," we find that the Legislature itself is a government body or agency distinct from the PSC or the Study Commission. In accord with this reasoning is that of CEO 00-11, in which we found that a former general counsel of the Department of Environmental Protection (DEP) was not prohibited from personally representing clients for compensation before the Board of Trustees of the Internal Improvement Trust Fund (BOT) within two years of vacating his public position, notwithstanding that the DEP serves as staff to the BOT. Also, see CEO 87-2, in which we found that the "agency"[5] of a House member is the Legislature.
Accordingly, while the member is prohibited from personally representing clients for compensation before the Legislature for a period of two years following vacation of his position in the House, the prohibition does not extend to his representation before the PSC and the Study Commission.
QUESTION 2:
Are other members of the Representative's law firm subject to the two-year restriction vis-a-vis the Legislature based upon his service in the House?
This question is answered in the negative. The prohibition only applies to personal representation. See, for example, CEO 00-3.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 5, 2000 and RENDERED this 10th day of October, 2000.
______________
Howard Marks
Chair
[1]Due to the "term limits" of Article VI, Section 4(b), Florida Constitution.
[2]Executive Order 2000-127, issued May 3, 2000.
[5]Further, the Representative, certainly a member of one "government body" (the Florida Legislature), was not a member of the other government bodies (the Public Service Commission and the Energy 2020 Study Commission).