POSTEMPLOYMENT RESTRICTIONS

FORMER LEGISLATOR SELLING
TO LEGISLATIVE AND EXECUTIVE BRANCH EMPLOYEES

To:        Name withheld at person's request (Palm Harbor)

SUMMARY:

Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, would prohibit a former member of the Florida House of Representatives, during the two years following vacation of his legislative office, from asking legislative and executive branch officials to designate legal services plans as available employee benefits in order to enable him to market the plans to legislative and executive branch officers and employees. However, he would not be prohibited during the two-year period from marketing such products directly to individual legislative and executive branch officers and employees. Further, the Code of Ethics would not prohibit his entering into an employment or contractual relationship with a company doing business with the State of Florida. CEO's 99-4, 89-57, 86-39, 84-9, 78-39, and 77-6 are referenced.

QUESTION 1:

Do postemployment restrictions in the Constitution and the Code of Ethics prohibit your asking the Senate or the House of Representatives to designate legal services plans as available employee benefits in order for you to market the plans to their members and employees during the two-year period after leaving your legislative office?

Question 1 is answered in the affirmative.

By your letter of inquiry and telephone communication with our staff, you relate that you left your position as a member of the Florida House of Representatives in November 2012. You state that you presently work as an independent contractor selling legal services plans offered by LegalShield, Inc. You explain that you would like to ask legislative leaders in the House and Senate to offer the legal services plans as available employee benefits to legislative members and employees and to allow you access to legislative premises to make presentations to groups of members or employees about the plans you offer for sale. You ask whether the Code of Ethics would limit or prohibit your seeking approval from the House and Senate to allow you to market such products to members and employees of the Legislature.

This question implicates Article II, Section 8(e), Florida Constitution, which provides in relevant part:

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.

The question also implicates Section 112.313(9)(a)3.a, Florida Statutes, which states:

No member of the Legislature . . . 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.

These provisions prohibit former legislators from personally "representing" another person or entity for compensation before the Legislature for two years following vacation of a legislative position.¹ The term "represent" is defined in Section 112.312(22), Florida Statutes, as:

. . . actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of an agency on behalf of a client.

We find that your asking the Legislature to designate legal services plans as employee benefits, thereby allowing you to market products within the Legislature, would be representation of another person or entity (LegalShield, Inc.) in that your requests necessarily would involve personal communications with officers and employees of your former agency (the Legislature). Further, because the communications would be in the commercial/business context of product sales, we find that the representation would be for compensation.

Therefore, for the period of two years after vacation of your position with the House of Representatives, you would be prohibited under Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a, Florida Statutes, from asking the House or the Senate to designate as employee benefits any services or products that you offer for sale to legislative members or employees. However, we find that you would not be prohibited from instigating "personal communications" directly with individual legislative members or employees to market the products you would offer for sale. In such a situation, your contact would not be "before the government body or agency," as required to trigger the prohibitions, but would be before the persons in their individual capacities as consumers of products or services.

Question 1 is answered accordingly.

QUESTION 2:

Does a newly-enacted postemployment restriction in the Code of Ethics prohibit your asking executive branch agency officials, including Cabinet members, to designate legal services plans as available employee benefits in order for you to market the plans to executive branch officials and employees during the two-year period after leaving your legislative office?

Question 2 is answered in the affirmative.

You explain that you would like to ask human resource directors in the State executive branch agencies to designate legal services plans, which you sell through LegalShield, Inc., as an independent contractor, as employee benefits available to executive branch officials and employees, including Cabinet members. And, you state that your proposals to the executive branch would include requests for permission to offer marketing presentations at agency offices to promote the legal services plans. You ask whether the Code of Ethics would limit or prohibit your seeking such designations from the executive branch enabling you to market legal services plans within the executive branch.

We find that your seeking decisions from the executive branch as to designation of legal services plans as employee benefits and as to your proposed marketing of the plans would be subject to the recently-enacted limitation in Section 112.313(9)(a)3.b, Florida Statutes, which states:

For a period of 2 years following vacation of office, a former member of the Legislature may not act as a lobbyist for compensation before an executive branch agency, agency official, or employee. The terms used in this sub-subparagraph have the same meanings as provided in s. 112.3215.

This provision prohibits you as a former legislator from acting "as a lobbyist for compensation" before executive branch agencies during the two years after you leave a legislative position. This is our first opportunity to interpret this provision, which took effect May 1, 2013.

Sections 112.3215(1)(f) and 112.3215(1)(h), Florida Statutes, define "lobbies" and "lobbyist" in relevant part as follows, respectively:

'Lobbies' means seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement or an attempt to obtain the goodwill of an agency official or employee . . . .

'Lobbyist' means a person who is employed and receives payment, or who contracts for economic consideration, for the purpose of lobbying, or a person who is principally employed for governmental affairs by another person or governmental entity to lobby on behalf of that other person or governmental entity. . . . ²

And, specifically, our executive branch lobbying rule states that a person is a "lobbyist" if he or she is "retained as an independent contractor or otherwise for payment or economic consideration by a person or governmental entity to lobby an agency on behalf of that person or governmental entity."³ Commission Rule 34-12.100(2), F.A.C.

Because you represent that you are retained as an independent contractor for economic consideration, you would be considered a lobbyist if your proposed activities to influence executive branch agencies to designate LegalShield legal services plans as employee benefits are "in the area of policy or procurement." CEO 99-4. Although neither "policy" nor "procurement" are defined in Section 112.3215, Florida Statutes, they are defined in our rules as follows:

'Policy' means a plan or course of action which is applicable to a class of persons, proceedings, or other matters, and which is designed to influence or determine the subsequent decisions and actions of an agency, such as any plan or course of action which would constitute a 'rule' as defined in Section 120.52, F.S. The term does not include the adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis, such as would be involved in the issuance or denial of a license, permit, or certification or in a disciplinary action or investigation involving a person. [Rule 34-12.020(9), F.A.C.]

'Procurement' means the purchase or acquisition of any property, interest in property, or services by an agency. [Rule 34-12.020(11), F.A.C.]

We find that "procurement" is not present in your scenario because you do not propose to market or offer the legal services plans for purchase by the agencies themselves. CEO 99-4. As to "policy" implications of your proposed executive branch activities, we find that executive agency designation of legal services plans as employee benefits, as requested by you, would apply to a "class of persons" (executive agency officials and employees) and, further, that any request by you to so designate the plans would be intended "to influence executive agency decisions" concerning employee benefits available to that "class of persons."⁴

In CEO 84-9, we found that a member of the House of Representatives was prohibited from personally marketing computer software systems to state attorney and public defender offices, which we understood to be State agencies, based on a finding that the legislator's marketing activity constituted "representing" a company. Although we have not previously addressed whether marketing within executive branch agencies of products intended for purchase by agency employees constitutes representation as to "policy," we find that your proposed executive branch activities would affect an agency's policies concerning a class of persons. Therefore, we find that you would be prohibited by Section 112.313(9)(a)3.b, Florida Statutes, during the two years after leaving your legislative position, from approaching the executive branch to request that agencies designate certain legal service plans as employee benefits which you would then market to executive branch officers and employees.

Because "lobbying" is expressly defined as engaging in activities in order "to influence an agency," we find that the Code of Ethics would not prohibit your marketing directly to individuals who happen to be executive branch officers or employees during the two years following the vacation of your legislative position. In such a situation, your contact would be before the persons in their individual capacities as consumers of products or services.

Question 2 is answered accordingly.

QUESTION 3:

Would any provision of the Code of Ethics prohibit you, as a former legislator, from entering into employment or a contractual relationship with a company presently doing business with the State of Florida?

Question 3 is answered in the negative.

We find that no provision of the Code of Ethics would prohibit your being employed by or contracting with a company doing business with the legislative or executive branch, as long as you do not file documents, attend proceedings, or have personal communications with legislative or executive branch officials regarding government policies concerning your employer or other business interests, and as long as you do not act as a lobbyist before executive branch agencies, during the two-year period following your departure from your position as a legislator, as stated above in Questions 1 and 2.⁵ Neither would the Code of Ethics limit or prohibit your being employed or contracting with a company doing business with judicial branch entities or local government entities.

Question 3 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 13, 2013, and RENDERED this 18th day of December, 2013.

____________________________________

Morgan R. Bentley, Chairman

^[1] A legislator's public agency is the entire Legislature. CEO 86-39; CEO 78-39; CEO 77-6.

^[3] Under Section 112.3215(3), Florida Statutes, executive branch lobbyists are required to register as lobbyists with this Commission.

^[4] In CEO 89-57, we found that executive agency lobbyist registration is required when negotiations include attempts to influence agency policy.

^[5] You ask whether you are prohibited, during the two years after leaving the Legislature, from approaching "any office affiliated or funded by the State of Florida" about marketing products to "their employees." We find that the prohibitions in Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a, Florida Statutes, apply only to the Legislature and that the prohibition in Section 112.313(9)(a)3.b, Florida Statutes, applies to all executive branch agencies.