POSTEMPLOYMENT RESTRICTIONS

FORMER LEGISLATIVE DEPUTY STAFF DIRECTOR
EMPLOYED BY STATE UNIVERSITY

To: Name withheld at person’s request (Tallahassee)

SUMMARY:

A former Deputy Staff Director of the House of Representatives is not prohibited by Section 112.313(9)(a)4., Florida Statutes, from representing a State university before the Florida Legislature within two years after leaving employment with the Legislature. CEO 87-2, CEO 00-9, CEO 00-20, CEO 11-10, CEO 11-19, and CEO 11-22 are referenced.

QUESTION:

Would you, a Deputy Staff Director of the Committee on Health and Human Services of the Florida House of Representatives, be prohibited by Section 112.313(9)(a)4., Florida Statutes, from representing a State university before the Legislature for two years after leaving your current employment?

Your question is answered in the negative due to the exemption within the statute.

Pursuant to your written inquiry and communications with our staff you state that you currently are serving as Deputy Staff Director of the Committee on Health and Human Services of the Florida House of Representatives. You specify that the Committee is a standing committee of the Legislature. You further indicate that you recently have accepted an offer of employment, to begin on December 1, 2014, with The Florida International University (FIU). Your new position will be Assistant Vice President of Health Policy and Governmental Affairs within FIU’s Division of Governmental Relations. The duties of this position include the planning and coordination of governmental relations activities on Legislative and other governmental matters pertaining to health care issues. You further specify that unless restricted by Section 112.313(9)(a)4., Florida Statutes, your duties also will include representing FIU before the Legislature and registering as a Legislative lobbyist.

Section 112.313(9), Florida Statutes, provides in relevant part:

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:

(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title.

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.

3.a. 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.

b. For a period of 2 years following vacation of office, a former member of the Legislature may not act as a lobbyist for compensation before an executive branch agency, agency official, or employee. The terms used in this sub-subparagraph have the same meanings as provided in s.112.3215.

4. An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, 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. [Emphasis supplied.]

Your current position as a Deputy Staff Director of a standing committee of the Legislature is specifically identified as a position encompassed within Section 112.313(9)(a)2.a.(IV), Florida Statutes, and your position with FIU would, unless restricted, require “representation,” as the term is defined in Section 112.312(22),¹ Florida Statutes, before the Legislature. The Commission on Ethics has found that the agency of a former Legislative employee is the Legislature—not merely the chamber with which he or she was employed. See CEO 87-2 and CEO 00-20. Therefore, absent applicability of the exemption in the statute (“unless employed by another agency of state government”) you would be prohibited from representing FIU before the Legislature for a period of two years following vacation of your Legislative employment. Thus, the issue in the instant case is whether FIU is “another agency of state government” pursuant to the exemption.

In CEO 11-22 we analyzed whether a former staff director of a standing committee of the Florida Senate was prohibited by Section 112.313(9)(a)4., Florida Statutes, from representing the Office of the State Courts Administrator (OSCA) before the Florida Legislature. In that case we determined that OSCA was an agency and not a private entity, and acknowledged that it unquestionably exists at the State, not the local, level of government.² Therefore, we found that OSCA was an agency of the state government and that the language of the exemption required that we find that the employee’s proposed employment would not be prohibited.

Similarly, in accordance with CEO 11-22 and the plain language of the exemption, we find that your proposed employment with FIU would not be prohibited. FIU is a “state university” encompassed within the State University System created by Article IX, Section 7, Florida Constitution.³ Article IX, Section 7, Florida Constitution, provides that the State University System is a single state university system comprised of all public universities created for the benefit of Florida’s citizens, their communities and economies. Section 1001.705(1)(d), Florida Statutes, governing the responsibilities for the State University System under Article IX, Section 7, Florida Constitution, defines “state universities” as “agencies of the state which belong to and are part of the executive branch of state government.” Therefore, we find that FIU is an agency, not a private entity, which exists at the State, not the local, level of government.

Finally, we continue to believe that allowing an exemption for employees who take positions in other state agencies does not run counter to the goals of the post-employment restriction.⁴ The evil to be guarded against here primarily is influence peddling and the use of public position to create opportunities for personal profit once an official leaves his or her position. See CEO 11-19, CEO 11-10, and CEO 00-9. The potential for a conflict of interest or for the exercise of undue influence to the benefit of a private organization or a particular local government entity does not exist so long as the employee remains part of the enterprise of State-level government. To suggest that State universities such as FIU are not a part of the enterprise of State government within the meaning contemplated by the post-employment exemption (“another agency of state government”) contained in Section 112.313(9)(a)4., Florida Statutes, would defy logic and the plain language of the statute.⁵

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 12, 2014, and RENDERED this 17th day of December, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]“Representation” is defined in Section 112.312(22) 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 communications made with the officers or employees of any agency on behalf of a client.”

^[2]We further opined that Section 112.313(9)(a)2. defines “state agency” to mean state entities over which the Legislature has plenary budgetary and statutory control. However, we found that the term “state agency” is not used in the subparagraph governing post-employment restrictions for covered legislative employees; rather the term is used only in connection with the provision prohibiting Legislators from representing others for compensation while in office. See Section 112.313(9)(a)3., Florida Statutes.

^[3] In addition, Section 1000.21(6)(i), Florida Statutes, provides that FIU is a “state university” governed pursuant to the State University System.

^[4]Section 112.313(9)(a)3.a., Florida Statutes, applicable to former members of the Legislature also contains a two-year prohibition similar to that of Section 112.313(9)(a)4. However, unlike Section 112.313(9)(a)4., it contains no exemption for employment with another agency of the state government.

^[5]Please note that this opinion does not address standards or prohibitions, if any, provided in the rules of the House or Senate and referenced in Section 112.313(9)(b), Florida Statutes. For advice under these rules, you should contact the House or Senate.