POST-OFFICEHOLDING RESTRICTIONS

FORMER COUNTY COMMISSIONER ENGAGING IN VARIOUS ACTIVITIES
WITHIN TWO YEARS OF VACATING HER PUBLIC POSITION

To: Name withheld at person's request (St. Augustine)

SUMMARY:

Advice is provided to a county commissioner concerning the application of the two-year post-officeholding restriction contained in Section 112.313(14), Florida Statutes, in a variety of circumstances. Referenced are CEO 13-10, CEO 12-04, CEO 11-24, CEO 11-07, CEO 11-03, CEO 09-6, CEO 09-5, CEO 07-6, CEO 06-22, CEO 05-4, CEO 93-36, and CEO 77-119.

QUESTION 1:

Once your term as a County Commissioner ends, to what extent will the two-year post-officeholding "representation" restriction of Section 112.313(14), Florida Statutes, prohibit you from representing clients of your LLC before the Board of County Commissioners, the County Administrator, and immediate support staff of the Board and the Administrator?

Your question is answered as set forth below.

In your letter of inquiry, you state that you currently serve on the Board of County Commissioners of St. Johns County and that you will be vacating the office at the end of your term (November 22, 2016). You indicate that you also are the sole managing member and employee of a limited liability company (LLC) that was formed before you qualified to run for the County Commission.¹ You state the LLC is not currently working on projects located within the County, but inquire as to what services it can provide through you within the County once your term on the County Commission ends. In particular, you ask a series of questions concerning how the post-officeholding restriction of Section 112.313(14), Florida Statutes, will apply.²

Section 112.313(14), Florida Statutes, provides in relevant part:

LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.— 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. For purposes of this subsection:

(a) The "government body or agency" of a member of a board of county commissioners consists of the commission, the chief administrative officer or employee of the county, and their immediate support staff. . . .

Section 112.313(14) will prohibit you for two years after vacating your public position from personally representing another person or entity before the County Commission (including individual Commissioners or the Board as a whole), as well as before the County's chief administrative officer—whom you identify as the County Administrator—and the "immediate support staff" of the County Commission and the County Administrator. This prohibition is not limited to situations in which you appear at a meeting of the County Commission, but also to communications on behalf of a person or entity with an individual County Commissioner, the County Administrator, or their immediate support staff³ outside of a public meeting. See CEO 05-4 (applying the prohibition to a former county commissioner meeting with members of the county commission in their individual capacities). It includes appearances or communications with the identified persons on behalf of a client, a client of your LLC, or your LLC itself, all of whom are legal persons or entities separate and distinct from you. See CEO 13-10. The prohibition applies even if the LLC's client is a non-profit organization or a consultant for another entity, as the statute does not distinguish between different types of clients.

The question then becomes what constitutes a "personal representation" prohibited under Section 112.313(14). The term "represent" is defined in Section 112.312(22), Florida Statutes, as "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 communication made with the officers or employees of any agency on behalf of a client." As we have repeatedly said, this definition is very broad and encompasses any attempt to convince the "government body or agency" to take or refrain from taking any action (see CEO 13-10 (note 4)),⁴ as well as attendance at County Commission meetings or workshops on behalf of another person or entity, even without participating in the discussion. See CEO 07-6 and CEO 06-22.

You also inquire whether the two-year prohibition applies where there are multiple items on the meeting agenda, some affecting only you personally, but others affecting the LLC or its clients. Section 112.313(14), by its terms, applies only where the former officer "personally represents another person or entity." (emphasis added). It does not prevent a former officer from representing her own private interests. Therefore, attendance at the portion of a Commission meeting at which an issue of private interest and unconnected with your LLC or a client would be heard will not trigger the statute. However, the statute would prohibit your attendance at any part of the meeting affecting your LLC or a client.

QUESTION 2:

Within two years of vacating your position, may you personally represent clients of your LLC for compensation before boards other than the County Commission on which a member of the County Commission serves?

This question is answered in the negative.

You inquire whether the prohibition of Section 112.313(14) will apply if within two years of vacating your public position you were to represent clients before certain County advisory boards,⁵ or other boards,⁶ upon which a County Commissioner serves.

We have previously found that Section 112.313(14) not only prohibits a former county commissioner from appearing before the board of county commissioners, but also prohibits personal representations made to a commissioner outside a county commission meeting. In CEO 05-4, we refused to limit the prohibition to appearances before the county commission serving as a board, stating:

[s]uch an interpretation would render the statute a nullity, as it would have the absurd effect of prohibiting former officials from representing clients in a public meeting of the body on which they served, while allowing them to meet privately, one-on-one and behind the scenes with the very same persons or, in what would amount to almost the same thing, their aides.

In CEO 07-6, we advised a former county commissioner that while he could attend an informational meeting arranged by community members, and which was not an agency proceeding, he would be prohibited from making comments or arguments on behalf of any person or entity to any county commissioner or staff in attendance.

Similarly, we find here that you would be prohibited from representing persons or entities before a member of the County Commission, even in the context of his or her service on another board.

QUESTION 3:

Within two years of vacating your public position, may you participate as part of a team that will make proposals to the Board of County Commissioners, if you do not physically appear before the Commission, write no letters to and file no documents with the Commission, and do not personally communicate with the Commission members or their aides?

This question is answered in the affirmative.

You also inquire whether Section 112.313(14) prohibits you or your LLC from serving as part of a team that will appear before the Board of County Commissioners on behalf of a client. For example, you inquire whether you may assist an attorney—employed by a law firm and engaged by an LLC client—in preparing documents to be sent to the County Commission or in serving as an expert witness before the County Commission.

As previously discussed, the two-year representation ban of Section 112.313(14) prohibits a former county commissioner from personally representing another person or entity before, among others, the county commission. Given the definition of "representation" in Section 112.312(22), this means you are prohibited for two years from personally attending a County Commission proceeding on behalf of a client, writing letters or filing documents with the County Commission on behalf of a client, or communicating with County Commissioners or their aides on behalf of a client whether or not you do so as part of a team or in partnership with another entity.

However, Section 112.313(14) does not speak to representations made by others. In CEO 09-6, we advised the former Executive Director of the Florida Commission for the Transportation Disadvantaged that a prohibited representation would not occur were a third party to list his name in bid response documents coming before the commission, provided that he personally did not appear before the commission or discuss the response documents with any commissioner for two years after leaving his position. We said:

Were someone to write a letter mentioning your status, file documents referencing your employment, or contact the Commission or its staff and reference you, we do not believe that this would constitute your personal representation before your former agency.

Section 112.313(14) prohibits only your personal representations. If you are serving on a team that is presenting an argument or application on behalf of a client to the County Commission, but you remove yourself from having any of the prohibited contact with the County Commission, we do not find you will have engaged in a prohibited representation under Section 112.313(14). Offering input or advice to the team, or being named as a team member in documents submitted to the County Commission would not fall within the prohibition. However, personal attendance at a County Commission meeting, signing or filing documents⁷ with the County Commission, or communications with the statutorily-articulated persons and entities on behalf of the team would be prohibited.

Related to this issue is the question of whether you may serve as an expert witness before the County Commission. You indicate there may be circumstances where you will be asked to testify before the County Commission, whether as an outside expert hired by a third party or as part of your service to a team of which you or your LLC is a member. In the context of an expert hired by a third party, we have said that the responsibilities of such an expert witness do not involve representing another in the same sense that an attorney or other advocate represents a client. See CEO 11-7 and CEO 11-3. However, were you to testify as an expert for a team on which you or your LLC is a member, your role as an expert witness will be the equivalent of advocating on behalf of your team or its client, and would be prohibited by Section 112.313(14) for two years after you leave your public position.

QUESTION 4:

Within two years of vacating your public position, may you represent clients on behalf of your LLC before County staff (other than those listed in Section 112.313(14)(a)) and/or before the County's Planning and Zoning Board, when there is the potential that materials you prepare for their review may be forwarded to the Board of County Commissioners?

Your question is answered in the affirmative.

Your next series of questions concerns whether you may represent clients on behalf of your LLC before County staff and/or the County's Planning and Zoning Board, particularly since decisions of that Board—and thus the material that you prepare for it—may subsequently be reviewed by the County Commission.⁸

In CEO 05-4, we advised a former county commissioner that he could represent clients within two years of vacating his public office before the county's planning and zoning board, notwithstanding that decisions made by that board were automatically reviewed by the county commission. This case is directly applicable to your questions.⁹

You also inquire whether you will be prohibited from representing clients before the Planning and Zoning Board or another County agency if there happens to be a County Commissioner in the audience when you appear on the client's behalf.

To apply the prohibition in this context would be to deprive you of the ability to represent clients before persons and entities not identified in Section 112.313(14) because of circumstances outside your control (i.e., a County Commissioner attending the meeting on his own volition). This we decline to do. While we are mindful of the potential for abuse in this scenario, we believe such potential is mitigated in that the prohibition would prevent inviting a County Commissioner to attend as an audience member.

QUESTION 5:

Within two years of vacating your public position, may you apply in your private capacity to be appointed by the Commission to an advisory board?

This question is answered in the affirmative.

You inquire whether you, acting in a private capacity and on your own behalf, may apply to the Board of County Commissioners to be appointed to serve on a County advisory board within two years of vacating your public position. Since you would be applying on your own behalf as a natural person—and not on behalf of another person or entity—your application and appointment will not implicate Section 112.313(14). The statute is not triggered when individuals are appearing before their "former government body or agency" on their own behalf, as opposed to on behalf of another person or entity. Indeed, we have said in other contexts that a public officer is not prohibited from appearing before any board in an individual capacity as a private citizen, representing her own personal interests. See CEO 93-36 and CEO 77-119.

Similarly, Section 112.313(14) will not prohibit you as a natural person from applying for and accepting paid employment by the County within two years of vacating your public position, even if the position requires you to report to the County Commission or the County Administrator. However, the statute would prohibit you from appearing before the County Commission, County Administrator, or other listed persons to seek a contract offering the services of your LLC.

Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 9, 2016, and RENDERED this 14th day of December, 2016.

____________________________________

Matthew F. Carlucci, Chair

^[1]You state that the LLC offers clients various property management and entitlement services, including ad valorem taxation status management, tax certificate management, and management of entitlement teams, which are comprised of attorneys, surveyors, environmental scientists, and civil engineers.

^[2]Your inquiry contains seventeen numbered questions, which have been reorganized and rephrased into the five questions contained in this opinion.

^[3]The "immediate support staff" of the County Commission includes each Commissioner's staff, whether designated as administrative aides or assistants. Regarding the County Administrator, you advise that several secretaries as well as the Director of Administrative and Support Services are assigned to provide administrative support to that position, and that the County has two Assistant County Administrators who report directly to the County Administrator. We find the "immediate support staff" of the County Administrator includes all of these individuals. See CEO 06-22 (Question 1).

^[4]As distinguishable from the type of rote, mechanical contact necessary to deliver on or perform a contract (CEO 13-10 (note 4) and CEO 12-4 (note 6)), such as project updates, the purpose of which is simply to relay or receive information and not to influence decision making. See CEO 09-5. In contrast, an attempt to change the terms of the contract would be considered "representation" and would fall under the prohibition of Section 112.313(14). See CEO 12-4 (note 6) and CEO 11-24 (note 10).

^[5]You specifically identify the Tourist Development Council as a County agency whose membership includes a County Commissioner and inquire whether you may appear before the Council on behalf of an LLC client.

^[6]You specifically identify the Northeast Florida Regional Council as a non-County board which is required by statute to include a County Commissioner, and you inquire whether you may appear before the Council on behalf of an LLC client.

^[7]Including responses to requests for proposals or bids submitted by a team on which you or your LLC are a member.

^[8]You relate that certain decisions the Planning and Zoning Board makes are appealable to the County Commission and that other applications which begin at the Planning and Zoning Board are referred to the County Commission for final approval.

^[9]Likewise, we find Section 112.313(14) will not be triggered if you are a member of a team representing a client before County staff or the Planning and Zoning Board, even if there is the potential that the team (absent you, personally) will continue representing the client before the County Commission or other persons enumerated in Section 112.313(14).