CEO 02-12 -- June 11, 2002

 

 

POST-EMPLOYMENT RESTRICTIONS

 

FORMER AGENCY FOR HEALTH CARE ADMINISTRATION ATTORNEY REPRESENTING CLIENTS BEFORE AGENCY AND VARIOUS DEPARTMENT OF HEALTH BOARDS

 

To:       (Name withheld at person's request)

 

SUMMARY:

 

Section 112.313(9)(a)4, Florida Statutes, does not prohibit a former Agency for Health Care Administration ("AHCA") Attorney from appearing before the Department of Health ("DOH") boards and the Probable Cause Panels of each board that she appeared before as an AHCA employee for two years from the time that she vacated her position with the AHCA, since these boards were not part of the agency with which she was employed for purposes of the application of Section 112.313(9)(a)4.

 

Section 112.313(9)(a)4 also does not prohibit the former AHCA attorney from appearing before any other health professional boards under the DOH=s Division of Medical Quality Assurance or before the Probable Cause Panels of each of these boards for two years, since these boards were not part of the agency by which she was employed, or from representing another person or entity before any other DOH division.

 

Because of the personal influence and affiliation gained by the former AHCA attorney with AHCA employees in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office, the former AHCA attorney is prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients for compensation for two years from the date that she vacated her position with the AHCA before boards within DOH's Division of Medical Quality Assurance to the extent that such representation entails written and/or oral communications with the AHCA or with its personnel.

 

Because the former AHCA attorney would have been in a position to gain personal influence and affiliation with attorneys employed in the AHCA General Counsel's Office, many of whom would still be acting for the Department in matters involving her private clients, any contacts that she might have with AHCA's General Counsel's Office attorneys relative to issues other than health care professional regulation, such as facility regulation and/or Medicaid issues, would constitute prohibited "representation" "before [her former] agency," since her former employer would be the agency with jurisdiction to enter the final order in such matters.  For the same reasons, she also is prohibited from personally appearing before other AHCA divisions, including, but not limited to, the Division of Medicaid and the Division of Managed Care and Health Quality on behalf of clients for compensation within two years of her vacating her position with the AHCA.

 

Finally, in view of the Legislature's recent transfer of the powers, duties, functions, and assets of the practitioner regulation component of the AHCA to the DOH, as a result of its adoption of Section 44 of HB 59-E (assuming the Governor does not veto the legislation),  Section 112.313(9)(a)4, Florida Statutes, would prohibit the former AHCA attorney from representing clients for compensation before any of the personnel who will be transferred from the AHCA to DOH and who perform any of the consumer complaint, investigative, and prosecutorial services previously performed by the AHCA under contract with the DOH.

 

QUESTION I:

 

Are you, formerly an Agency for Health Care Administration attorney, prohibited by Section 112.313(9)(a)4, Florida Statutes, from appearing before the Boards of Medicine, Osteopathic Medicine, Respiratory Care, Occupational Therapy, and the Probable Cause Panels of each of these Boards for two years from the date that you vacated your position with the Agency?

 

Your question is answered in the negative.

 

In your request for an opinion, you ask us to discuss the "extent and impact" of the post-employment restrictions of the Code of Ethics for Public Officers and Employees [Part III, Chapter 112, Florida Statutes] on your ability to represent clients before various Department of Health ("DOH") Boards and the Agency for Health Care Administration ("AHCA"), where, from November 1998 through July 2001, you were employed in a Selected Exempt Service Position as an attorney in the Practitioner Regulation Section of the General Counsel's Office of the AHCA.[1]  The Practitioner Regulation Section, you write, is divided into the Medical Section, which handles the prosecution of cases before the Boards of Medicine, Osteopathic Medicine, Respiratory Care, Occupational Therapy and their respective Probable Cause Panels, and the Allied Health Section, which handles the prosecution of cases before all other health care professional boards and their respective Probable Cause Panels.

 

You advise that you were assigned to the Medical Section, where you handled cases before the Boards of Medicine, Osteopathic Medicine, Respiratory Care, and Occupational Therapy, as well as their respective Probable Cause Panels.  You advise further that you handled cases from the pre-probable cause stage through litigation at the Division of Administrative Hearings ("DOAH") until final orders were issued by the various Boards.  Although you were employed in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office, your client was DOH, you write.[2]

 

Approximately 30 health professional boards are established within the Division of Medical Quality Assurance at  DOH--most of which, you advise, you never appeared before.[3]  Other than handling cases for the DOH's Division of Medical Quality Assurance, we also are advised, you never represented any of the other DOH divisions.  Furthermore, you relate that you never handled cases originating from either the Facilities Regulation and Managed Care Section or the Medicaid Section of the AHCA's General Counsel's Office.[4]

 

In light of the above, you ask us to determine which agency you are prohibited from appearing before for purposes of the application of Section 112.313(9)(a)4, Florida Statutes.  Section 112.313(9)(a) to which you refer provides as follows:

 

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 or legislative branch of government holding a position in the Senior Management Services as defined in s. 110.402,  or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.

 

       

********

 

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.

 

********

 

4. No agency employee shall 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.

 

5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct.

 

[Section 112.313(9)(a), Florida Statutes] [E.S.]

 

Among other things, this "revolving door" provision of the Code of Ethics prohibits former Selected Exempt Service employees, such as yourself, from personally representing another person or entity for compensation before their former agencies for a period of two years following vacation of their positions.

 

The term "agency" is defined at Section 112.312(2), Florida Statutes, to mean

 

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university.  [Section 112.312(2), Florida Statutes.]

 

In previous opinions we have said that the Legislature intended by this definition to define a State employee's agency as the lowest departmental unit within which his or her influence might reasonably be considered to extend.  See, for example CEO 82-75, CEO 91-49, Question 3, CEO 94-29, CEO 95-14, Question 1, CEO 96-18, and CEO 00-22.  We also have sought to restrict that definition to those duties or segments of the former agency where the former employee's influence would naturally extend and which the former employee should be prohibited from exploiting for two years after leaving State employment.  See CEO 91-49, CEO 93-14, CEO 94-29, CEO 94-34, CEO 95-14, and CEO 96-18.

 

In CEO 94-29 we observed that in a number of our prior opinions involving employees of the Department of Professional Regulation ("DPR"), we had found that the "agency" of a DPR employee whose primary responsibilities related to a particular board within DPR was that Board.[5]  However, we also noted that in CEO 88-2 we determined that the agency of a staff attorney of the Department of Business Regulation ("DBR"), who was assigned to the Office of the Secretary of the Department was the entire Department.[6]  Thereafter, in CEO 91-49 we found that the agency of a former Senior Attorney with the Governor's Office of Planning and Budgeting, who served as counsel to the Florida Administration Commission, was both the Administration Commission, because he acted as counsel to the Commission, and the Governor's Office of Planning and Budgeting, because of his secondary responsibilities within that office.  Then, in CEO 94-29, we found that the "agency" of a former Department of Business and Professional Regulation ("DBPR") attorney was the Division of Regulation, which included the Legal Section wherein he worked, as well as each board or program that he represented or advised at the time that he vacated his position with the Department.[7]

 

We have had the opportunity to interpret and apply Sections 112.313(9)(a)4 and 112.3141(1)(d)[8], Florida Statutes, in a variety of situations.  For example, in CEO 93-14, we opined that a former staff attorney of the Department of Environmental Regulation ("DER") was prohibited by Section 112.313(9)(a)4 from personally representing another person or entity for compensation before the Department or before its successor, the Department of Environmental Protection ("DEP"), in matters concerning former DER personnel or matters for a period of two years after vacating her public position.  Her activities, we determined, were restricted based upon whether or not they constituted "representation," as well as on whether or not her representation was "before her agency."[9]  "Her representation in matters before courts or agencies other than DER would not be prohibited," we wrote.  We also held that this "revolving door" prohibition applied only to situations where the former staff attorney "personally represented" a client and did not limit the activities of the other members of her law firm.

 

Thereafter, in CEO 95-14, we held that a former DBPR Senior Construction Attorney was prohibited by Section 112.313(9)(a)4 from representing contractors before the Construction Industry Licensing Board ("CILB") for two years following termination of her employment, as well as before any other DBPR board where attorneys of DBPR's Division of Regulation, who normally prosecuted complaints before the other boards, also possessed delegated final agency authority to dismiss complaints filed with the boards.  We found that the former construction attorney's "agency" for purposes of the statute was the CILB and the Division of Regulation, or more specifically, the Legal Section within the Division.  Because the former construction attorney's representation of a contractor in a Division of Administrative Hearings ("DOAH") hearing as to which the CILB had final order authority constituted representation "before her agency," we also determined that she was prohibited from representing the contractor before DOAH for the two year period.  However, the construction attorney, we opined, was not prohibited from representing health care providers before the Board of Medicine within the AHCA because that Board was not her "agency" under Section 112.313(9)(a)4.

 

In CEO 96-18, we responded to an inquiry from another former AHCA attorney who had been employed in the Allied Health Section of the AHCA's Bureau of Legal Services.  He, like you, also asked about the extent to which the Section 112.313(9)(a)4 prohibition applied to his post-employment activities.  We determined that his "agencies" were the various boards within AHCA[10] that he had represented or appeared before, as well as the entire Bureau of Legal Services within DBPR.  Because of his influence and affiliation with the attorneys employed in the Bureau of Legal Services, we opined that he was prohibited from representing clients in proceedings involving the Bureau for a period of two years from the date that he vacated his position.

 

Most recently, in CEO 00-11, we found that, although a former General Counsel of DEP served as staff to the Board of Trustees of the Internal Improvement Trust Fund, Section 112.313(9)(a)4 did not preclude him from representing clients before the Governor and Cabinet sitting in their capacities as the Board of Trustees or from contacting their aides during the two-year period after leaving the Department.  We noted that the post-employment restrictions are directed at restricting activities before the agency with which the former General Counsel was employed and that he was employed by DEP, not by the Governor or any other Cabinet Officer.

 

Applying these holdings to your situation, at this time we find that Section 112.313(9)(a)4, Florida Statutes, does not prohibit you from appearing before the Boards of Medicine, Osteopathic Medicine, Respiratory Care, Occupational Therapy, and the Probable Cause Panels of each of these Boards for two years from the time that you vacated your position with the AHCA, since these Boards were not part of the agency with which you were employed for purposes of the application of Section 112.313(9)(a)4.  The "agency with which [you were] employed" was the AHCA, not DOH or the various health professional boards under DOH.

 

We distinguish our holding in CEO 96-18 from your current situation by noting that through the Legislature's enactment of Chapter 96-403, Laws of Florida, which became effective on July 1, 1997, the various health professional boards referenced in CEO 95-14 and CEO 96-18 were reassigned from the Division of Medical Quality Assurance within AHCA, which was within DBPR, to the Division of Medical Quality Assurance within DOH.  Through the Legislature's enactment of Section 2 of Chapter 00-305, Laws of Florida, which became effective on October 1, 2000, the AHCA became an independent department, no longer the responsibility of DBPR.  Consequently, we find that by representing clients before various health care professional boards within DOH, you would not be representing another person or entity before the agency with which you were employed, that is, the AHCA.  However, we caution that this opinion does not address any possible conflicts of interest that may exist under the Rules Regulating the Florida Bar, since we do not administer the standards of conduct applicable to Florida Bar members.  For advice about the appropriate standards of conduct under these rules, please contact the Florida Bar.

 

This question is answered accordingly.

 

QUESTION II:

 

Are you prohibited by Section 112.313(9)(a)4, Florida Statutes, from appearing before health care professional boards under DOH's Division of Medical Quality Assurance, other than the Boards of Medicine, Osteopathic Medicine, Respiratory Care, Occupational Therapy, and the Probable Cause Panels of those Boards, for two years from the date that you vacated your position with the Agency?

 

Your question is answered in the negative.

 

Your next set of questions concern the health care professional boards under DOH's Division of Medical Quality Assurance other than the boards that you appeared before and their respective probable cause panels.  For the reasons stated in our response to your first question, we find that you may appear before these other boards and the respective boards' staff since these boards were not part of the agency by which you were employed.

 

Based upon our reasoning in CEO 95-14, Question 1, and CEO 96-18, we also find that you would not be prohibited from appearing before DOAH in cases where these boards have final order authority, and you are free to engage in all aspects of proper legal representation of your clients in the matters before the other DOH Division of Medical Quality Assurance boards.

 

QUESTION III:

 

Are you prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally appearing before Department of Health divisions, other than the Division of Medical Quality Assurance?

 

Your question is answered in the negative.

 

In our response to Questions I and II above, we opined that you  would not be prohibited from personally appearing before the various health professional boards within the Department of Health's Division of Medical Quality Assurance because neither the various boards nor the Department of Health was the agency by which you were employed.  For the same reasons, we find that at this time you are not prohibited from representing another person or entity before any other Department of Health division.

 

QUESTION lV:

 

Are you prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally contacting AHCA employees in the Medical Section of the Practitioner Regulation Section of the General Counsel's office regarding cases in which the Boards of Medicine, Osteopathic Medicine, Respiratory Care, and Occupational Therapy, as well as other boards under DOH's Division of Medical Quality Assurance and the probable cause panels of each of these boards are involved, for two (2) years from the date that you vacated your position with the AHCA?

 

Your question is answered in the affirmative.

 

At this time, you advise,  although all statutory authority to receive, investigate, and prosecute complaints is vested in DOH, DOH has delegated these functions to the AHCA.  Consequently, upon receipt of a complaint against a health care professional, AHCA employees in the Consumer Services Section within the AHCA's Division of Managed Care and Health Quality decide whether the complaint is legally sufficient to warrant further investigation.[11]  Thereafter, you write, all legal authority to decide the outcome of the complaint is vested with DOH or the individual health care professional boards.  In other words, DOH has delegated the "procedural aspects" of the handling of complaints to AHCA employees, you write, including, but not limited to deciding how to investigate a complaint, which witnesses to call for a hearing, and whether to enter into preliminary settlement negotiations.  All final order authority is vested in DOH or in the individual health care professional boards.  For example, all proposed settlement offers to resolve a complaint must be approved by DOH and submitted to the boards which have final order authority to accept or reject them, you write.

 

You also advise that AHCA employees do not have any "practical" or legal authority to dismiss cases without submitting the cases to a probable cause panel or full board.  Nevertheless, you advise that at different points in the process AHCA employees make recommendations to DOH, to the probable cause panels of the Boards and/or to the full Boards for final approval.  However, all "adjudicatory decisions" are made by DOH, the probable cause panels of the Boards, and/or the full Boards, you write.

 

You relate that a number of reasons might exist for your contacting AHCA employees in the course of your representation of clients before the various DOH boards.  For example, following a finding of legal sufficiency, you may need to contact an AHCA investigator[12] for purposes of submitting a response on behalf of your client who is the subject of an investigation.  In addition, prior to a complaint being submitted to a probable cause panel, you may need to submit information to the probable cause panel, which initially would have to be mailed to the AHCA employee who coordinates the processing of such information and forwards it to the probable cause panel members.  Then, if probable cause is found, you might want or need to contact AHCA employees, as you would any opposing counsel's office, in order to obtain copies of pleadings, coordinate the scheduling of hearings and depositions, and discuss preliminary settlement options, you write.  Furthermore, you write that during the course of a DOAH hearing you would contact the assigned AHCA attorney to discuss general litigation issues, such as whether DOH opposes a particular pre-hearing motion, as required by Florida Administrative Code Rule 28-106.204(3).

 

In determining whether Section 112.313(9)(a)4, Florida Statutes, prohibits you from personally contacting AHCA employees in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office in the manner discussed above regarding cases in which the various health care professional boards are involved, we must examine, as we did in CEO 93-14, whether your "representation" actually would constitute "representation" as that term is defined at Section 112.312(22), Florida Statutes,[13] and whether the "representation" would be "before [your] agency."

 

In CEO 93-14, we noted that the prohibition against representing a client before one's former agency is intended, as is the almost identical prohibition which is applicable to members of the Legislature under Article II, Section 8(e), Florida Constitution, to prevent the appearance of impropriety by prohibiting a public employee from exploiting the special knowledge or influence gained from his or her public position for private gain after vacating his or her public position, and to restrict interactions between a former employee and his or her former colleagues.  In other words, we view Section 112.313(9)(a)4 as prohibiting contacts with the former employing agency through any of the actions within the definition of "represent" on behalf of a client.  Consistent with this view, we  opined in CEO 93-14 that the former DER attorney would have been in a position to gain personal influence and affiliation with DER's personnel, many of whom still would be acting for DER in matters involving her private clients.

 

We have found the two-year prohibition to apply in situations where, for example, DER has final order authority over a matter as to which a former DER attorney is providing representation to a client.  While we found in CEO 91-54 that Article II, Section 8(e), Florida Constitution, and Section 112.3141(1)(c), Florida Statutes [the precursor to Section 112.313(9)(a)(4), Florida Statutes] permitted representation by a former legislator of clients who were suing State agencies in a judicial tribunal or appealing an administrative or lower court decision in an appellate court, we also found that the former legislator would be prohibited from personally representing clients who sought to challenge the agencies' action in an administrative proceeding where the agency had final order authority, notwithstanding the fact that the agency may have utilized the fact-finding functions of the Division of Administrative Hearings ("DOAH").  See also CEO 95-14.

 

Here, because the Boards of Medicine, Osteopathic Medicine, Respiratory Care, and Occupational Therapy, and the other health care boards within DOH's Division of Medical Quality Assurance, rather than the AHCA (your former agency), have final order authority over cases brought before these boards, we already have found in our response to Question 1 above that you would not be prohibited by Section 112.313(9)(a)4, from representing clients before these boards within two years of your vacating your position with the AHCA.  However, where your representation entails written and/or oral communications with AHCA employees in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office regarding these cases, we find that because of the personal influence and affiliation gained by you as a former AHCA attorney with AHCA employees in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office, you are prohibited by Section 112.313(9)(a)4, Florida Statutes, from engaging in such practices.  As we noted in CEO 93-14 and CEO 95-14, such prohibited practices would include any written and/or oral communications with the AHCA or with its personnel, such as making discovery requests (interrogatories, requests for production of documents, notices of taking deposition) which are sent under your signature to the AHCA or its personnel, taking depositions, examining witnesses, filing documents with the AHCA or AHCA personnel, and engaging in personal communications with AHCA on behalf of a client relative to an AHCA proceeding. 

 

QUESTION V:

 

Are you prohibited by Section 112.313(9)(a)4, Florida Statutes, from appearing before the AHCA's General Counsel's office relative to issues other than health care professional regulation, such as facility regulation and/or Medicaid issues?

 

Your question is answered in the affirmative.

 

You advise that the AHCA has final order authority on Medicaid issues, which are handled by AHCA's Division of Medicaid, and on health facility issues, which are handled by AHCA's Division of Managed Care and Health Quality.  You also advise that attorneys from the General Counsel's Office may or may not be involved in these issues.

 

As we stated above, in CEO 93-14 we observed that a former DER attorney would have been in a position to gain personal influence and affiliation with DER personnel, many of whom still would be acting for DER in matters involving the attorney's private clients.  We also noted that in CEO 95-14 we found that because of the DBPR Senior Construction Attorney's presumed personal influence and affiliation with the attorneys employed in DBPR's Legal Bureau, his former agency, he would be representing a client before DBPR at the stage of the proceeding prior to the probable cause stage in which a Division of Regulation attorney was permitted either by rule or practice to exercise final agency authority to dismiss a complaint, as occurred when the Lead Construction Attorney for the CILB exercised his or her authority to issue closing orders after deciding not to prosecute a complaint. Accordingly, we found that for two years following his termination of employment with DBPR, the former DBPR attorney was prohibited from representing clients with respect complaints that could come before one of the DBPR's Boards other than the CILB at that stage of the proceeding, that is, prior to the probable cause stage where attorneys employed in DBPR's Legal Bureau, with whom the former DBPR attorney was presumed to have personal influence and affiliation, exercised final order authority with respect to whether or not to prosecute cases.  However, we opined that he was not prohibited from representing a client by communicating with his former colleagues at all other later stages of the proceedings, such as before DOAH or DBPR boards other than the CILB, when the attorney no longer had final agency authority to dismiss or close a case for lack of legal sufficiency.

 

Here, we find that, in addition to possibly being privy to  special knowledge, you, as a former AHCA attorney, would have been in a position to gain personal influence and affiliation with attorneys employed in the AHCA General Counsel's Office, many of whom would still be acting for the Department in matters involving your private clients.  According, we would view your contacts with AHCA's General Counsel's Office attorneys relative to issues other than health care professional regulation, such as facility regulation and/or Medicaid issues, to constitute  "representation" "before [your former] agency," which is prohibited by Section 112.313(9)(a)4, since your former employer, the AHCA, would be the agency with jurisdiction to enter the final order in such matters.  See CEO 95-14.

 

QUESTION VI:

 

Are you prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally appearing before other AHCA divisions, including, but not limited to, the Division of Medicaid and the Division of Managed Care and Health Quality?

 

Your question is answered in the affirmative.

 

You advise that you would appear before AHCA's Division of Medicaid on Medicaid issues and AHCA's Division of Managed Care and Health Quality on facility issues about which AHCA has final order authority.  At times, you write, you would appear before AHCA divisions, including but not limited to, the Division of Medicaid or the Division of Managed Care and Health Quality, without appearing before an attorney in the General Counsel's Office.  For example, if  your client, a health care facility, was applying for a Certificate of Need ("CON"), you would assist it with the process which may not necessarily involve an AHCA attorney from the General Counsel's Office.  However, at some point, you advise, an AHCA attorney may become involved.  For instance, if your client is denied a Certificate of Need and requests an administrative hearing, an AHCA attorney would become involved in the process in which AHCA has final order authority.

 

As we noted in our responses to Question 1 and 5 above, the agency with which you were employed is the AHCA.  Accordingly, we find that you would be prohibited from personally appearing before other AHCA divisions, including, but not limited to, the Division of Medicaid and the Division of Managed Care and Health Quality on behalf of clients for compensation for two years from the date that you vacated your position with the AHCA.

 

QUESTION VII:

 

In view of the Legislature's adoption of Section 44 of HB 59-E relating to health care, and specifically to the transfer of the powers, duties, functions, and assets of the practitioner regulation component of the AHCA to the DOH, and assuming the Governor does not veto the legislation, what activities discussed above, if any, would be prohibited by Section 112.313(9)(a)4, Florida Statutes?

 

Since your initial inquiry, you advise that during the latest legislative special session, the Legislature, through its enactment of Section 44 of HB 59-E, transferred, effective July 1, 2002 (assuming the Governor does not veto the legislation), by a type 2 transfer 259 positions from the AHCA to DOH[14] along with the powers, duties, functions, and assets relating to the consumer complaint services, investigations, and prosecutorial services performed by the AHCA under contract with DOH.[15]  The legislation also permits DOH to contract with the Department of Legal Affairs for the investigative and prosecutorial services transferred to DOH.

 

We were presented with a similar question in CEO 93-14 as a result of the Legislature's enactment of Chapter 93-213, Laws of Florida  (Florida Environmental Reorganization Act of 1993), which created the Department of Environmental Protection by transferring the Department of Natural Resources and the Department of Environmental Regulation to the new department.  There, we concluded that Section 112.313(9)(a)4 applies when the "'representation' is directed to personnel of the new department who were formerly personnel of DER or when the 'representation' concerns programs, activities, functions, powers, or duties of the former agency (DER)."  Accordingly, we find that Section 112.313(9)(a)4 would prohibit you from representing clients for compensation before any of the personnel who are transferred from the AHCA to DOH and who perform any of the consumer complaint, investigative, and prosecutorial services previously performed by the AHCA under contract with the DOH.

 

Your questions are answered accordingly.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2002 and RENDERED this 11th day of June, 2002.

 

 

 

__________________________

Ronald S. Spencer, Jr.

Chair

 

 


[1]The General Counsel's Office, you advise, is a separate division within the AHCA.

[2]Pursuant to Section 20.43(3), Florida Statutes, you advise, the AHCA has an interagency agreement with the Department of Health whereby the AHCA provides consumer complaint, investigative, and prosecutorial services related to the regulation of health professionals for the Division of Medical Quality Assurance of DOH.  This agreement, you write, was renewed on July 1, 1999, and remains in effect at this time. 

[3]Responsibility for the various boards and health care professionals was given to the Division of Medical Quality Assurance of DOH by the Legislature through Section 20.43(3)(g), Florida Statutes.

[4]AHCA has final order authority with respect to cases handled by attorneys from both of these sections of its General Counsel's Office.

[5]See CEO 79-78 (agency of executive director of the Board of Accountancy is the Board), CEO 81-23 (agency of the executive director of the Board of Dentistry is the Board), CEO 88-48 (agency of clerk typist specialist or senior clerk with the Division of Real Estate is the Division); and CEO 88-49 (agency of Senior Clerk of Board of Auctioneers is the Board).

[6]See also CEO 93-14 wherein we found that the agency of a Department of Environmental Regulation ("DER") attorney was the entire department since the Office of General Counsel was located within the Office of the Secretary of DER.

[7]See also CEO 95-14 (agency of former DBPR Senior Construction Attorney was the legal section within DBPR's Division of Regulation, as well as the Construction Industry Licensing Board ("CILB")).

[8]Precursor to Section 112.313(9)(a) 4, Florida Statutes.

[9]The term "represent" or "representation" is defined at 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.

 

[10]At the time, the AHCA still was part of DBPR.

[11]However, even if the AHCA employee determines that a complaint against a health care practitioner is insufficient for purposes of conducting an investigation, we are advised that the complaint will not be dismissed without the approval of the appropriate Board or its probable cause panel.

[12]You advise that rather than being assigned to the General Counsel's Office of AHCA, AHCA investigators currently are assigned to the Division of Managed Care and Health Quality in the AHCA.

[13]The terms "represent" or "representation" are defined at 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.

 

[14]Unless the General Appropriations Act reduces the number of full-time equivalent positions from the practitioner regulation component of the AHCA.

[15]Under the statute, the contract is to terminate effective June 30, 2002.