POSTEMPLOYMENT RESTRICTIONS

FORMER ADMINISTRATIVE LAW JUDGE
REPRESENTING CLIENTS BEFORE DOAH

To: Mr. John Van Laningham, Administrative Law Judge (Tallahassee)

SUMMARY:

A former administrative law judge would not be prohibited under Section 112.313(9)(a)4, Florida Statutes, from representing clients before the Division of Administrative Hearings. CEO 10-14 is referenced.¹

QUESTION:

Would Section 112.313(9)(a)4, Florida Statutes, prohibit your representation of clients before the Division of Administrative Hearings after you leave your position as an administrative law judge?

Your question is answered in the negative.

You write that from October 2000 to the present you have been employed by the Division of Administrative Hearings (DOAH) as an administrative law judge.² You ask whether, if you were to leave your public employment at DOAH and return to private law practice, you would be subject to the two-year representation restriction in Section 112.313(9)(a)4, Florida Statutes.

Section 112.313(9), Florida Statutes, provides in relevant part:

(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 officers, appointed state officers, 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 . . . .

. . . .

(VI) Any person, including an other-personal-services employee, having the power normally conferred upon the positions referenced in this sub-subparagraph.

4. An agency employee . . . 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.

Section 112.313(9)(a)4 prohibits a defined “employee” from representing³ another person or entity for compensation before the agency with which he was employed for a period of two years following vacation of his position. Section 112.313(9)(a)2.a., Florida Statutes, defines “employee,” in pertinent part, as a person holding a position classified as Senior Management Service (SMS) as defined in Section 110.402, Florida Statutes, or holding a position classified as Selected Exempt Service (SES) as defined in Section 110.602, Florida Statutes, or having the power normally conferred upon the positions referenced. We previously have not had occasion to consider whether an administrative law judge is an “employee” as defined in Section 112.313(9)(a)2.a.

In Section 110.2035, Florida Statutes, the Legislature provided the framework for a system classifying State government positions for purposes of determining responsibility levels and compensation in categories designated as Career Service, Selected Exempt Service (SES), and Senior Management Service (SMS). Under Section 110.205(1), the default category known as Career Service “includes all positions not specifically exempted by this part.” Turning to the relevant exemptions, we note that Section 110.205(2)(g) provides that “judges, referees, and receivers,” without defining those positions, are exempt from the Career Service category and, therefore, classified as SES. However, we find that this provision would not apply to an administrative law judge because of express exceptions in Sections 110.205(2)(r) and 110.205(2)(w) providing that State government attorney positions and supervisory positions are classified as SES except “any attorney who serves as an administrative law judge” pursuant to Section 120.65, Florida Statutes. We find that Sections 110.205(2)(r) and 110.205(2)(w) each contain an express exception to an exemption which exception operates to designate the position of administrative law judge as a Career Service position. Thus, we find that the position of administrative law judge is designated as within Career Service and not within Senior Management Service or Selected Exempt Service.

As to the issue of whether an administrative law judge position has the power normally conferred upon any SES or SMS position and thus is within the provision in Section 112.313(9)(a)2.a.(VI) applying the representation limitation in Section 112.313(9)(a)4 to “any person . . . having the power normally conferred upon the positions referenced in this sub-subparagraph,” we find that the position of administrative law judge is not equivalent to an SMS or SES position. In this regard, your inquiry is much like that of the requestor in CEO 10-14 (former assistant state attorney representing clients in litigation involving the state attorney’s office), in which we found that an assistant state attorney, while neither SMS nor SES, also did not have the power normally conferred upon any other SES or SMS employee. While Section 110.205(2)(g) exempts “judges, referees, and receivers” from Career Service and places them in SES, we recognize that an administrative law judge does not have the power normally conferred upon a District Court of Appeal judge, a Circuit Court judge, a County Court judge (all within the Judicial Branch of government), or a Judge of Compensation Claims, primarily due to the types of cases, procedures, and final order authority assigned by law to those judges,⁴ and we recognize that an administrative law judge, as an employee of DOAH, is within the Executive Branch, not the Judicial Branch.⁵ See Section 20.22(2)(f), Florida Statutes.

Accordingly, we find that you would not be restricted under Section 112.313(9)(a)4, Florida Statutes, from representing clients before DOAH after you leave employment with your agency.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 12, 2014, and RENDERED this 17th day of December, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]Prior opinions of the Commission on Ethics are available at www.ethics.state.fl.us.

^[2]Section 120.65(4), Florida Statutes, states that DOAH “shall employ administrative law judges to conduct hearings required by this chapter or other law. Any person employed by the division as an administrative law judge must have been a member of The Florida Bar in good standing for the preceding 5 years.”

^[3]“Represent” or “representation” is defined in Section 112.312(22) 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 officers or employees of any agency on behalf of a client.”

^[4]A hearing officer within the Public Employees Relations Commission (PERC) is classified as Career Service and a PERC hearing officer, like an administrative law judge, decides cases under Section 120.57, Florida Statutes. Also, under the Florida Retirement System (FRS), an administrative law judge is Regular Class, while a judge of compensation claims is Senior Management Service Class, and a judge in the Judicial Branch of government is Elected Officers’ Class, according to the FRS Investment Plan: Summary Plan Description (July 1, 2014).

^[5]Section 110.205(2)(c), Florida Statutes, exempts “members, officers, and employees of the judicial branch” from Career Service and designates them as holding SES positions.