POST-OFFICEHOLDING RESTRICTIONS
FORMER ATTORNEY GENERAL

To: Bill McCollum, Attorney General

SUMMARY:

The Sunshine Amendment in Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, prohibit an elected state officer from personally representing 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.  These provisions would prohibit a former Attorney General from engaging, for two years, in representations of persons or entities, for compensation, before the Office of the Attorney General, the Governor and Cabinet, either sitting as a board or individually, and boards and commissions on which the Attorney General actually serves.  It would not prohibit representations before the Elections Commission, employees of the Governor's office or State agencies headed by other Cabinet members, or boards to which he has assigned a designee.

QUESTION 1:

What restrictions do the Sunshine Amendment to the State Constitution, Article II, Section 8(e), and Section 112.313(9)(a)3, Florida Statutes, place on an Attorney General leaving office?

Your question is answered as follows.

You write that you will leave public office when your term ends in January 2011.  You state that you are aware of the prohibitions against representing persons or entities for compensation before your former government body or agency, but inquire as to the extent of the limitation.  As Attorney General, you serve not only as the chief state legal officer¹ and head of the Department of Legal Affairs,² but also on the Cabinet and a variety of other boards.  Given the number of positions you hold in State government, you seek guidance as the limitations on your practice once you leave office.

A review of the applicable law is first in order.  Article II, Section 8(e), Florida Constitution, provides:

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. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.

Section 112.313(9)(a)3, Florida Statutes, enacted in 1991, reiterates this standard, stating:

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. 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.

We have not previously had occasion to interpret these provision in a context as broad as the one you present.³  However, we have had the opportunity to review three other similar provisions which specifically limit representations certain public officials may make during their service or after leaving their positions.

The first is Article II, Section 8(e), Florida Constitution, and its statutory reiteration, Section 112.313(9)3, Florida Statutes, which contain identical prohibitions against compensated representations by members of the Legislature before State agencies (the "in-office ban").  The Constitutional prohibition states:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals.

The Section 112.313(9)3 adds the language, "or in settlement negotiations after the filing of a lawsuit" to the exclusion for representations before judicial tribunals.

Next is Section 112.313(9)(a)(4), which places post-employment restrictions on certain State employees, and states:

No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

Finally, there is the post-officeholding restriction on local government officials of Section 112.313(14), Florida Statutes, which, prior to 2006,⁴ provided:

A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the governing body of which the person was an officer for a period of 2 years after vacating that office.

We have often looked to the in-office ban for guidance in interpreting post-office holding and post-employment questions.  In CEO 84-6, we concluded that the in-office ban permitted a State legislator to personally represent a client, in court, in a lawsuit against a State agency.  Further, because the language of the ban explicitly allowed representations before judicial tribunals, we also reasoned that "all those activities which naturally are attendant to representing a client before a court also must be permitted"—activities which could include communications with opposing counsel regarding the conduct of the lawsuit and settlement negotiations, even if the opposing counsel was employed by a State agency.  We found that "an attorney is not representing a client before a State agency when engaging in those communications which naturally result from a lawsuit in court against the agency.  In essence, the agency has no proceedings before it which affect the legislator's client; the proceedings are before the court, a judicial tribunal." 

Until the year 2002, we interpreted Section 112.313(9)(a)(4), which places post-employment restrictions on certain State employees, in keeping with our reasoning in CEO 84-6.  For example, in CEO 93-14, where the Department of Environmental Regulation was a party to a proceeding but was not the agency responsible for issuing the final order, we said,

since an agency other than DER would possess the jurisdiction to enter a final order under this scenario, we find that such a matter is not "before the agency" for purposes of Section 112.313(9)(a)4. In essence, your former agency has no proceedings before it which affect the client of its former employee; the proceedings are before a separate and distinct agency. Therefore, it is our view that you are free to engage in all aspects of proper legal representation of your client in the matter before the other agency, including written and oral communications with your former agency or with its personnel, which naturally are part of your provision of legal services in the matter before the other agency.

However, in CEO 02-12, we modified our view.  We found that, given the language of Section 112.313(9)4—"No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed"—and the purpose of the "revolving door" prohibition—"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,"—a former employee of the Agency for Health Care Administration would be prohibited from engaging in written and/or oral communications with AHCA employees in the course of representing clients, even when the final decision making authority for the matters lay with another agency.  Since then time, we have consistently opined that former State employees are prohibited from having communications with staff of their former agencies in the course of representing clients, whether or not the employee's former agency had final decision making authority in the matter.  For example, in CEO 06-1 we advised a Selected Exempt Service attorney employed by the Florida Department of Transportation that he would be prohibited by Section 112.313(9)(a)4, from personally representing another person or entity for compensation against the Department in eminent domain proceedings or presuit negotiations for same, or in an inverse condemnation lawsuit or negotiations prior to such a lawsuit against the Department, for two years following vacation of his position.

In CEO 05-4, we dealt with the post-officeholding restriction placed on local government officials by Section 112.313(14), Florida Statutes (2004), which stated,

A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the governing body of which the person was an officer for a period of 2 years after vacating that office. 

In interpreting the meaning of the term "governing body" we observed that,

the various sections dealing with post employment or officeholding restrictions use slightly different language. Section 112.313(14) uses the term "governing body," while Article II, Section 8 and Section 112.313(9)(a)3 use the phrase "government body or agency," and Section 112.313(9)(a)4 (the provision applicable to state employees) uses the term "agency by which he or she was employed."  By using a different and more limited terminology, it would appear that the legislature intended the post-officeholding prohibition applicable to elected county, municipal, special district, or school district officers to be less restrictive than the prohibitions applicable to other officers and employees.

In CEO 05-4, applying this "less restrictive" terminology, we found that the "government body" of a former member of the Santa Rosa County Commission would include only the members of the County Commission, either sitting as a board or individually, and the aides to the Commission members, but would not include the Planning and Zoning Board, the Board of Adjustments, or the County Planning, Zoning and Development Division.

It is with all of this as background that we review the various roles of the Attorney General.

The Attorney General is the head of the Department of Legal Affairs.⁵  The plain language of the Constitution and statute indicates that you would be prohibited from appearing before a successor Attorney General or the Department of Legal Affairs.  This would include divisions and programs created within the office, such as the Office of Civil Rights,⁶ the public records mediation program,⁷ and the Cybercrime Office.⁸

There are also a number of boards and programs statutorily created within the Office of the Attorney General or the Department of Legal Affairs, and staffed by employees of the Department of Legal Affairs.  These include the Florida Commission on the Status of Women,⁹ the Council on the Social Status of Black Men and Boys,¹⁰ the Florida New Motor Vehicle Arbitration Board,¹¹ and the Florida Motor Vehicle Theft Prevention Authority.¹²  It is our opinion that you would be prohibited from representing persons or entities for compensation before any of the afore-named entities for a period of two years following leaving office.

We note that the definition of "representation," found in Section 112.312(22), Florida Statutes, includes personal communications with agency staff.  As we have previously stated, unlike the in-office ban, nothing in the statute or the Constitution suggests that when you are representing a client in some forum other than those listed, activities which "naturally are attendant" to such representation should be permitted.  Accordingly, and consistent with our interpretation of the post-employment restrictions found in Section 112.313(9)(a)4, we find that Article II, Section 8(e) and Section 112.313(9)(3) would prohibit you from representing persons or entities before staff of the Attorney General's Office and the Department of Legal Affairs, even when the final decision on the issue is to be made in some other forum.

Also housed within the Department of Legal Affairs is the Office of Statewide Prosecution, created pursuant to Article IV, Section 4, Florida Constitution and Section 16.56, Florida Statutes. The Office of Statewide Prosecution is a separate budget entity, but the Attorney General appoints the Statewide Prosecutor.

We recognize that independent agencies can be created and assigned to another agency for administrative purposes.  In CEO 03-10, we advised the former director of legislative affairs for the Department of Management Services (DMS) that Section 112.313(9)(a)4, Florida Statutes, which prohibits specified state agency "employees" from representing clients for compensation before their former agency for two years following vacation of position, would not prohibit him from representing clients before so-called "dotted line" agencies (such as the Correctional Privatization Commission and the Florida Commission on Human Relations) that were housed within that Department.  But in that opinion, the entities, although created or housed "within" the DMS, were independent from it, and were not subject to its control, supervision, or direction, a situation not the case here.

However, we note that there is a "dotted-line" agency housed within the Department of Legal Affairs to which the prohibition would not apply, and that is the Florida Elections Commission. Section 106.24(1)(a), Florida Statutes, provides that:

There is created, within the Office of the Attorney General, a Florida Elections Commission, hereinafter referred to as the commission. The commission shall be a separate budget entity and the agency head for all purposes. The commission shall not be subject to control, supervision, or direction by the Department of Legal Affairs or the Attorney General in the performance of its duties, including, but not limited to, personnel, purchasing transactions involving real or personal property, and budgetary matters.

We previously have said that the prohibition of Article II, Section 8(e) establishes the principle that one's public service career and contacts developed in that capacity should not be used to enrich oneself at the expense of the public, that the provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. CEO 00-18. It is clear from the language of Section 106.24(1)(a) that neither the Attorney General nor the Department of Legal Affairs is intended to have any responsibilities with respect to the Florida Elections Commission. Accordingly we find that you would not be considered to be an officer or member of the Commission for purposes of the prohibition, and would be permitted to represent clients before that entity.

Responsibilities as Cabinet Member

Pursuant to Article IV, Section 4, Florida Constitution, the Attorney General serves as a member of the Cabinet. As such, you are also a member of the State Board of Administration¹³ and serve as one of the trustees of the Internal Improvement Trust Fund and the Land Acquisition Trust Fund, ¹⁴ the Administration Commission,¹⁵ and the Governor's Board of Executive Clemency.¹⁶  The members of the Cabinet also comprise the Financial Services Commission,¹⁷ and the Financial Management Information Board of the Administration Commission¹⁸ (including the Coordinating Council of the Financial Management Information Board of the Administration Commission, established pursuant to Section 215.96(2), Florida Statutes).

Obviously, you will be prohibited from representing persons or entities before any of these bodies for the two-year period. The question then becomes whether the prohibition would include representations before the Governor or an individual Cabinet member, or one of their staff members. The plain language of the prohibition forbids representations "before the government body or agency of which the individual was an officer or member," and "representation" includes communication with an agency's officers. Analogizing to our interpretation of the term "government body" in CEO 05-4, dealing with local government officials, we find that the prohibition would include representing persons or entities before the Governor or individual Cabinet members as well, whether or not the subject of the representation is a "Cabinet" issue. However, as you are not a member of the Governor's Office, or any of the agencies headed by the Chief Financial Officer or the Agriculture Commissioner, you would not be precluded from making representations before the staff of those agencies, other than Cabinet aides.

Article IV, Section 4(g) also makes the Governor and Cabinet the agency head of the Department of Law Enforcement, and by statute, the Governor and Cabinet also serve as the agency head of the Agency for Enterprise Information Technology,¹⁹ the Department of Revenue,²⁰ the Department of Highway Safety and Motor Vehicles,²¹ and the Department of Veterans' Affairs.²²

It is our view that, as you are a member of the board which serves as agency head for each of these agencies, you must be considered to be a "member" of the agencies, for purposes of Article II, Section 8(e) and Section 112.313(9)(a)3. Accordingly, we find that you would be prohibited from representing persons or entities before the Department of Law Enforcement,²³ the Agency for Enterprise Information Technology, the Department of Revenue, or the Department of Veterans' Affairs, or the staff of these agencies, for compensation, for a period of two years after leaving office.

As with representations before staff of the Attorney General's Office, we find that the prohibition will apply even when the final decision-making authority rests with a court or other entity.

Other Boards and Commissions

There are a number of entities on which the Attorney General serves, including the Constitution Revision Commission, ²⁴ the governing board of the Division of Bond Finance within the State Board of Administration,²⁵ the Children's Cabinet,²⁶ the Medicaid and Public Assistance Fraud Strike Force,²⁷ the Domestic Security Oversight Council,²⁸ the Board of the Florida Martin Luther King, Jr., Institute for Nonviolence,²⁹ and the Florida Prepaid College Board.³⁰ We find that you would be prohibited from representing persons or entities, for compensation, before these entities for a period of two years after leaving office.

There are also other boards on which you may serve personally, or to which you may appoint a designee, including: the Health Information Systems Council in the Department of Health,³¹ the Statewide Drug Policy Advisory Council in the Executive Office of the Governor, the Correctional Policy Advisory Council created within the Legislature. ³³

We find that as to the bodies on which you personally serve, you would be prohibited from representing persons or entities, for compensation, for a period of two years after leaving office.

However, the same is not true as to entities to which you have assigned a designee. We have indicated in other contexts that where a designee enjoys the same authority as the person named to the board or commission, it is the designee, rather than the named individual who is the public official. See, CEO 90-63 (where statute allows Executive Director to name a "designee" to serve as his replacement on the Board, the designee rather than the Executive Director is the member of the Board subject to the disclosure requirement). Accordingly, if you have appointed a designee, the restriction would not apply to you.

Quasi-public entities

Finally, as Attorney General you are connected with three "public benefits corporations." You sit on the Tobacco Settlement Financing Corporation,³⁴ and may sit or appoint a designee to sit on the Florida Hurricane Catastrophe Fund³⁵ and the Inland Protection Financing Corporation.³⁶

It is not entirely clear what a "public benefit [or benefits] corporation is—the term is nowhere defined in the statutes. However, one thing is clear: neither the Florida Hurricane Catastrophe Fund nor the Inland Protection Financing Corporation are state agencies. Florida Hurricane Catastrophe Fund, 699 So. 2d 685, 686 (Fla. 1997); State v. Inland Protection Financing Corp., 699 So. 2d 1352, 1357 (Fla. 1997). Therefore, they could not be a "government agency or body" of which you are an officer or member.

The Tobacco Settlement Financing Corporation shares some structural similarities with the Florida Hurricane Catastrophe Fund and the Inland Protection Financing Corporation. However, since there is no statutory definition to guide us and no judicial interpretation, we cannot determine at this juncture whether or not it is a "government body or entity." Should you, in the future, have an interest in representing a person or entity before this particular body, we invite you to make further inquiry.

Accordingly, we find that Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, would prohibit you from representing, for compensation, persons or entities before the Office of the Attorney General or entities within or a part of that agency or their respective staff, before the Governor and Cabinet either sitting in any of its constitutional or statutory forms, before the Governor or Cabinet members individually, and before any of the boards on which you personally serve, for a period of two years after leaving office.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 22, 2010 and RENDERED this 27th day of October, 2010.

______________________________
Roy Rogers, Chairman

^[1]Article IV, Section 4(b), Florida Constitution.