A former county commissioner, appointed by the Governor to office but not elected to office, is not subject to the 2-year post-officeholding representation restriction of Section 112.313(14), Florida Statutes. For the restriction to encompass the former commissioner, he would have to have been elected, not merely appointed to an elective position. CEO 87-14 is distinguished and CEO 79-68 is referenced.[1]
QUESTION:
Are you, a former county commissioner who was appointed by the Governor to serve during the suspension of a subsequently reinstated county commissioner, who never was a candidate for election, and who never stood for election, subject to the 2-year post-officeholding restriction of Section 112.313(14), Florida Statutes, regarding your representation of clients before county government?
Your question is answered in the negative.
By your letter of inquiry, we are advised that you were appointed by the Governor in March 2007 to serve as Clay County District 1 Commissioner during the suspension of the regular District 1 Commissioner, who was reinstated by the Governor approximately one year later, and that you did not qualify for or stand for popular election to the office. Further, you advise that you are an attorney and that you seek to represent clients before County government.
Section 112.313(14), Florida Statutes, is at issue; it provides, with emphasis supplied:
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 government body or agency of which the person was an officer for a period of 2 years after vacating that office. . . .
Based on the reasoning below, we find that you are not subject to the statute and, thus, that it does not prevent your representation of clients before County government within two years of your leaving the County Commission seat to which you were appointed.
Our construction of the statute necessarily involves recognition that it must be strictly construed (construed most favorably toward you, the person against whose interests it would be applied), due to its penal nature. City of Miami Beach v. Galbut, 626 So. 2d 192 (Fla. 1993). This is so because those covered by a penal statute must have clear notice of what the statute proscribes. Galbut, at 194. In your situation, it is apparent that the language of the prohibition "A person who has been elected to . . . " would not have put you, a citizen responsive to the Governor's appointment to temporary public service, on notice that you subsequently would be restricted in your economic/professional pursuits. Further, the Code of Ethics (Part III, Chapter 112, Florida Statutes) contains no definition of "elected," much less a definition encompassing Gubernatorial appointment; and Florida's election statutes show that you were not elected to the County Commission.[2]
In arriving at our decision herein, which apparently is one of "first impression,"[3] at least in regard to Section 112.313(14), we are not unaware that we have determined, for purposes of the voting conflicts law of Section 112.3143, Florida Statutes, that one appointed to a position normally filled by election was not an "appointed public officer" for purposes of the law. CEO 87-14. While we found there that the erosion prevention district commissioner held an elective, rather than an appointive, position, we did not find that he "had been elected to" the position. Further, our construction of Section 112.3143 in CEO 87-14 was not unfavorable to the district commissioner (was not violative of the penal statute/strict construction maxim), in that had we determined that he held an appointive, rather than elective, position, he would have been subject to additional statutory restrictions or requirements.
Accordingly, we find that you are not subject to Section 112.313(14), Florida Statutes, due to your service as a County Commissioner appointed by the Governor but not elected.
ORDERED by the State of Florida Commission on Ethics meeting in public session on September 11, 2009 and RENDERED this 16th day of September, 2009.
______________________________
Cheryl Forchilli, Chair
[2]See, for example, Section 100.041(2)(a), Florida Statutes (Officers chosen at general election), which provides that "[a] county commissioner is 'elected' for purposes of this paragraph on the date that the county canvassing board certifies the results of the election pursuant to s. 102.151." And see Section 100.181, Florida Statutes (Determination of person elected), which provides that "[t]he person receiving the highest number of votes cast in a general or special election for an office shall be elected to the office . . . ."
[3]In CEO 79-68, we were presented with a similar issue, whether a person appointed by the Governor as Secretary of State (then an elective position) was a "statewide elected officer" for purposes of the 2-year post-officeholding restriction currently codified at Section 112.313(9)(a)3, Florida Statutes, which we declined to address because it was unnecessary to do so, the opinion being decided on other grounds.