POST-EMPLOYMENT RESTRICTIONS

FORMER DEPARTMENT OF REVENUE SENIOR ATTORNEY
REPRESENTING PERSON OR ENTITY BEFORE DEPARTMENT

To: Name withheld at person's request (Ft. Lauderdale)

SUMMARY:

A former Selected Exempt Service employee (Senior Attorney) of the Department of Revenue is prohibited by Section 112.313(9)(a)4., Florida Statutes, from representing a person or entity before the Department for two years following vacation of his Department position. CEOs 02-12, 06-1, 10-22, and 12-22 are referenced.¹

QUESTION:

What is the application of Section 112.313(9)(a)4., Florida Statutes, to you, a former Selected Exempt Service employee of the Department of Revenue, in the context of your representation of persons accused of crimes involving the Department?²

Your question is answered as set forth below.

You relate that on or about September 28, 2016, you vacated the position of Senior Attorney at the Department of Revenue, a Selected Exempt Service (SES) position you began in mid-2014, having initially entered service at the Department earlier in 2014 in a Career Service position. Further, you state that the duties of your Senior Attorney position were predominately the same as those of your prior Career Service position³ but that in the SES (Senior Attorney) position, you were expected to handle more challenging (sales and use) tax issues. Additionally, you relate that occasionally you would provide information to the General Counsel's Office of the Department, that the General Counsel's Office would request specific information from you in preparation for litigation, that work-product of yours would be reviewed by the General Counsel's Office, and that you would argue for, or against, a position in the work-product or provide additional information to the General Counsel's Office, as requested. Also, you state that you would interact with the Taxpayer Rights Advocate (or his subordinate), a position directly beneath the Executive Director of the Department, regarding allegations by taxpayers of rights violations; and that you interacted with the General Tax Administration Program of the Department, on sales and use tax topics, including legislative bills analysis. And, you relate that when officials, such as the Governor or a Legislator, needed an answer to a question (whether the official contacted you directly or through Department channels), you provided answers, and any necessary updates, to the Department's Office of Legislative and Cabinet Affairs. However, you maintain that your work in the Senior Attorney (SES) position was, essentially, the same work that you had performed in the previous Career Service (non-attorney) position; that you did not work in the Office of the Department's General Counsel; and that the bulk of your work during your entire service at the Department was within the Technical Assistance and Dispute Resolution (TADR) portion of the Department, which portion is under the Deputy Executive Director of the Department, with the Deputy Executive Director being under the Executive Director (who heads the Department, below the Governor and Cabinet). Further, you state that in your SES position you never addressed criminal law issues, that all of your work products involved civil or administrative law, and that TADR does not have authority over criminal tax issues or the resolution of criminal matters.

You inquire as to whether you would be restricted for two years after leaving Department SES employment from engaging in certain conduct in conjunction with your representation of criminal defendants charged with crimes involving taxes or the Department. The conduct would include, but would not necessarily be limited to, interviewing and cross-examining investigators and collections agents of the Department's General Tax Administration Program, neither of which positions is located within TADR.

The prohibition at issue is Section 112.313(9)(a)4., Florida Statutes, which provides:

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.

For purposes of the prohibition, Section 112.313(9)(a)2.a.(I), Florida Statutes, defines "employee" to include ". . . . any person holding a position in the Selected Exempt Service . . . ." Section 112.312(22), Florida Statutes, defines "represent" or "representation" 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.

As a former Selected Exempt Service (SES) "employee," you are encompassed within the prohibition. What remains for our guidance to you is the extent of your former agency and whether or not interviewing and cross-examining current employees of the Department, or other contact with the Department in behalf of your criminal defendant client or your law firm within the definition of "representation," amounts to representation before the agency with which you were employed.

Based upon the various contacts, interactions, and responsibilities you describe within your SES (Senior Attorney) employment history at the Department, we find that your "agency" for purposes of the prohibition of Section 112.313(9)(a)4., Florida Statutes, is the whole of the Florida Department of Revenue. Notwithstanding that your responsibilities may have focused on the Technical Assistance and Dispute Resolution (TADR) portion of the Department, it is apparent that your work was not confined solely to TADR and, indeed, extended to various portions of the Department, including its General Counsel's Office and its Executive Director's Office. In addition, the organizational chart of the Department (included in your inquiry) indicates that the Department is not a decentralized entity with an organization akin to that of, for example, the Department of Transportation (FDOT), susceptible to confining your agency to a geographical portion of the entity, such as a particular FDOT district. Further, even when a department is decentralized, one working in it can have the whole as his agency if his work history indicates a broader presence within the department; see CEO 12-22. Additionally, we have found that former SES attorneys have the whole of their overall government entity as their "agency"; see, among others, CEO 02-12 (former attorney for Agency for Health Care Administration/AHCA) and CEO 06-106-1 (former FDOT attorney).

As to whether contact by you with the Department or its personnel is prohibited when the contact involves a matter where the Department will not make the final decision (a matter where the Department is not the locus of decisionmaking), such as a criminal prosecution, we have consistently opined, beginning with our decision in CEO 02-12, that former 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 decisionmaking authority in the matter. See CEO 10-222 and decisions cited therein. This furthers the purpose of the "revolving door" prohibition of Section 112.313(9)(a)4., Florida Statutes—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.

Accordingly, we find that you are prohibited by Section 112.313(9)(a)4., Florida Statutes, from any contact with the Department or its personnel within the meaning of "representation" as defined in Section 112.312(22), Florida Statutes, for two years following vacation of your Department SES position, including but not limited to contact with the Department or its personnel concerning criminal matters.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 10, 2017, and RENDERED this 15th day of March, 2017.

____________________________________

Matthew F. Carlucci, Chair

^[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2] Your submissions set forth your inquiry by numbered items. However, this opinion, while treating the substance of your inquiry, does not adhere to that numbering.

^[3] The prior position was that of a Tax Law Specialist (TLS), within TADR, under the Department's Deputy Executive Director, in which you drafted Letters of Technical Advice (LTA), Technical Assistance Advisements (TAA), and Internal Technical Advisements (ITA), and performed other duties.