POSTEMPLOYMENT RESTRICTIONS
FORMER SECRETARY OF DEPARTMENT OF COMMUNITY AFFAIRS
TESTIFYING AS EXPERT WITNESS IN ADMINISTRATIVE
PROCEEDING IN WHICH DEPARTMENT IS A PARTY
To: Thomas G. Pelham (Tallahassee)
SUMMARY:
A former Secretary of the Florida Department of Community Affairs is not prohibited by the two-year postemployment restriction of Section 112.313(9)(a)4., Florida Statutes, from serving as an expert witness in proceedings before a DOAH ALJ involving the Department. Such service would not constitute "representation" within the meaning of the prohibition. CEO 11-3 and CEO 91-54 are referenced.1
QUESTION:
Are you, a former Secretary of the Florida Department of Community Affairs (FDCA), prohibited by Section 112.313(9)(a)4., Florida Statutes, from testifying, in a paid or compensated capacity, as an expert witness in a proceeding before the Division of Administrative Hearings (DOAH), where FDCA is a party to the proceedings?
Your question is answered in the negative.
By your letter of inquiry, we are advised that you served as Secretary of the Florida Department of Community Affairs (FDCA) from January 8, 2007 through January 3, 2011, and that currently you are self-employed as a lawyer and as a planner. Further, you advise that the Department's determination that amendments to a particular local government's comprehensive plan are "in compliance"2 under Chapter 163, Florida Statutes, is the subject of a petition for administrative hearing brought by third parties. Additionally, you advise that the administrative hearing on the petition (in which the Department is a party respondent) will be conducted by an Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH), pursuant to Chapter 120, Florida Statutes, resulting in an evidentiary hearing and the ALJ's subsequent issuance of a recommended order containing recommended findings of fact and conclusions of law regarding whether the plan amendments at issue are in compliance. Continuing, you advise that the final order in the matter will be issued by the Department, if the Department finds that the amendments are in compliance, but, that if the Department finds the amendments are not in compliance, the ALJ's recommended order will be sent to the Administration Commission for final agency action.
Further, you advise that counsel for petitioners have asked you to testify, voluntarily or pursuant to a subpoena, in the administrative hearing to give your expert opinions as a certified planner on the issue of whether the plan amendments are in compliance. Also, you emphasize that the petitioners are represented by counsel and that you will not be acting as an attorney for the petitioners. Rather, you advise, your role will be limited to that of an expert witness in the DOAH proceeding and you state that you will not represent the petitioners before the Department.
Section 112.313(9)(a)4., Florida Statutes, provides, in part:
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.
The term "represent" is defined in Section 112.312(22), Florida Statutes, to mean
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 any agency on behalf of a client.
While we have not considered one's acting as an expert witness in the context of Section 112.313(9)(a)4., we have considered such in the context of a term-of-office restriction3 containing language similar to that of Section 112.313(9)(a). See CEO 11-3 (State Representative engaged as expert witness by law firm representing Department of Financial Services (DFS) in litigation), in which we found that the legislator would not be representing another person or entity for compensation before a State agency when negotiating with a law firm to extend a contract for expert witness services or when acting in his capacity as an expert witness in fulfillment of that contract and testifying in court, consulting with counsel, or communicating with other agents and employees of DFS. In CEO 11-3, regarding our finding that serving as an expert witness is not prohibited by the statute, we reasoned:
An 'expert witness' is 'A witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence or a fact issue.' (citation omitted) These responsibilities and actions do not involve representing another in the same sense that an attorney or other advocate represents a client or employer in seeking to influence the actions of an agency.
Similarly,4 here, we find that your work as an expert witness is not prohibited by Section 112.313(9)(a)4.5
Accordingly, we find that you are not prohibited by Section 112.313(9)(a)4., Florida Statutes, from serving as a paid or compensated expert witness in a Chapter 120 DOAH/ALJ proceeding involving your former agency, even if such service involves your having contact with your former agency or its agents or personnel mechanically coming within the definition of "represent" codified in Section 112.312(22), Florida Statutes.6
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 29, 2011 and RENDERED this 3rd day of August, 2011.
____________________________________
Robert J. Sniffen, Chairman
[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.
[2]Also, you advise that initially, during your tenure as Secretary, the Department found an earlier version of the amendments "not in compliance."
[3]Section 112.313(9)(a)3., Florida Statutes, which mirrors a restriction in Article II, Section 8(e), Florida Constitution, provides in part:
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]Both the prohibition at issue in CEO 11-3 and the prohibition at issue in the instant opinion utilize the definition of "represent" codified in Section 112.312(22).
[5]Our finding that the prohibition did not apply to the legislator in CEO 11-3 is not based in the exception to Section 112.313(9)(a)3., Florida Statutes, for representation before judicial tribunals. Rather, the finding is grounded in one's acting as an expert witness not constituting representation within the meaning of the prohibition. Thus, it is irrelevant to our analysis herein that Section 112.313(9)(a)4., unlike Section 112.313(9)(a)3., contains no judicial tribunal exception; and there is no need to revisit our prior determinations (see, for example, CEO 91-54) finding that a DOAH proceeding under an ALJ is not a "judicial tribunal."
[6]Please note that the Commission on Ethics has no jurisdiction regarding the Rules Regulating the Florida Bar. Therefore, this opinion should not be read as a finding by the Commission regarding the applicability, if any, of such Rules to your service as an expert witness in the context described in this opinion.