POST-OFFICEHOLDING RESTRICTIONS

FORMER COMMISSIONER AND CHAIR OF THE FLORIDA COMMISSION ON
OFFENDER REVIEW REPRESENTING PERSONS OR ENTITIES BEFORE THE
COMMISION ON OFFENDER REVIEW, THE GOVERNOR AND CABINET,
AND THE LEGISLATURE

To: Ms. Tena Pate (Tallahassee)

SUMMARY:

Section 112.313(9)(a)3.a, Florida Statutes, restricts the former Chair of the Florida Commission on Offender Review from representing persons or entities for compensation before the Commission for two years after leaving public office.  However, Section 112.313(9)(a)3.a will not restrict the former Chair from representing persons or entities before the Governor, members of the Cabinet, or the Legislature as none of those entities can be considered a government body or agency of which the Chair was an officer or member. Referenced are CEOs 96-18, 96-33, 00-11, 02-12, 10-22, and 11-19.

QUESTION 1:

Are you, the former Chair of the Florida Commission on Offender Review, prohibited by Section 112.313(9)(a)3.a, Florida Statutes, from representing persons or entities for compensation before the Commission on Offender Review for two years after leaving the Commission?

Under the circumstances presented, this question is answered in the affirmative.

Through your letter of inquiry and correspondence with our staff, you state that you formerly served in an appointed position as a Commissioner and Chair of the Florida Commission on Offender Review. You indicate you left that position on March 31, 2016, and you now inquire whether the post-public-service restriction of Section 112.313(9)(a)3.a, Florida Statutes, prohibits you from representing persons or entities for compensation before the Commission on Offender Review.¹

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:

b. "Appointed state officer" means any member of an appointive board, commission, committee, council, or authority of the executive or legislative branch of state government whose powers, jurisdiction, and authority are not solely advisory and include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relative to its internal operations.

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.

(emphasis added).

We find that as a member of the Commission on Offender Review, you were an appointed state officer. Therefore, we find that you are subject to the two-year, "revolving-door" prohibition of Section 112.313(9)(a)3.a. Accordingly, you are prohibited by Section 112.313(9)(a)3.a from representing another person or entity for compensation before your former agency—the Florida Commission on Offender Review—until April 1, 2018, which is two years from the date that you left the Commission.

QUESTION 2:

Are you prohibited by Section 112.313(9)(a)3.a, Florida Statutes, from representing persons or entities for compensation before the Governor and the Cabinet serving in their capacity as the Board of Executive Clemency, for two years after the date that you left the Commission?

Under the circumstances presented, this question is answered in the negative.

You also inquire whether the restriction of Section 112.313(9)(a)3.a would prohibit you for two years from representing persons or entities before the Governor and Cabinet. A portion of the responsibilities of the Commission on Offender Review—as detailed in Section 947.13(1)(e), Florida Statutes—is to report to the Board of Executive Clemency (hereinafter the Clemency Board) on "the circumstances, the criminal records, and the social, physical, mental, and psychiatric conditions and histories of persons under consideration by the board for pardon, commutation of sentence, or remission of fine, penalty, or forfeiture." The Clemency Board is a separate body from the Commission on Offender Review and, according to the Rules of Executive Clemency, is comprised of the Governor and the Cabinet. The Rules of Executive Clemency also indicate that the Commission on Offender Review provides reports and recommendations to the Clemency Board. You emphasize, however, that while the Commission on Offender Review provides such recommendations, the Clemency Board has no obligation to accept them, and that the Commission on Offender Review and the Clemency Board are independent entities. You also indicate that while you attended the Clemency Board's quarterly meetings to answer questions concerning the investigations conducted by the Commission on Offender Review, you were not a member of the Clemency Board and cast no vote in its determinations.²

Given this interface, your question, essentially, is whether the Clemency Board members—the Governor and members of the Cabinet—while serving in their Clemency Board capacity should be considered your former "agency" for the purpose of Section 112.313(9)(a)3.a, in addition to the Commission on Offender Review. Should the Governor and Cabinet (in their Clemency Board capacity) be considered your "agency," Section 112.313(9)(a)3.a will prohibit you from representing persons or entities before them until two years elapse from the date that you left public service.

Initially, it should be noted that the prohibition of Section 112.313(9)(a)3.a only applies to representations before a government body or agency where a member of the Legislature, an appointed state officer, or statewide elected officer "was an officer or member[.]" Therefore, by its language, the statute is narrowly focused. It does not prohibit post-public-service representations before the whole of state government, but only before the particular body where a public officer was a member.

The Commission on Ethics has construed a similar provision which specifically limits the representations that certain persons may make after leaving public employment. Section 112.313(9)(a)4, Florida Statutes, places a post-employment restriction on certain agency employees which is similar to the restriction found in Section 112.313(9)(a)3.a. Section 112.313(9)(a)4, Florida Statutes, states:

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 added). In the past, the Commission has used the restriction in Section 112.313(9)(a)4 as a guide when interpreting the post-employment restriction of Section 112.313(9)(a)3.a. See CEO 10-22. The Commission has narrowly defined the "agency" of a former employee for the purpose of Section 112.313(9)(a)4, confining the term's meaning only to the particular public agency where a person was formerly employed. See CEO 96-33 and CEO 96-18.

For example, in CEO 00-11, the Commission considered whether Section 112.313(9)(a)4 should be applied to prevent the former general counsel of the Department of Environmental Protection (DEP) from representing clients before the Governor and Cabinet when sitting in their capacity as the Board of Trustees of the Internal Improvement Trust Fund (BOT). The Commission noted that the former general counsel had personally participated as staff to the BOT by attending meetings before the Governor and Cabinet when they were serving in their capacity as the BOT, as well as by attending related meetings of Cabinet aides. However, despite this close interaction, the Commission still determined the former general counsel's "agency" did not include the Governor and the Cabinet, reasoning that the BOT was a separate and distinct unit of government from the DEP.

Similarly, in Question 1 of CEO 02-12, the Commission found that a former attorney for the Agency for Health Care Administration (AHCA) was not prohibited by Section 112.313(9)(a)4 from engaging in representation before various Department of Health boards, despite the fact that the she handled cases before the boards while working at AHCA. The Commission indicated that although the attorney regularly interacted with the Boards in the course of her AHCA employment, her sole "agency" for the purposes of Section 112.313(9)(a)4 was AHCA.

Finally, in Question 4 of CEO 11-19, the Commission considered whether the two-year restriction of Section 112.313(9)(a)4 would prevent a former employee of the Department of Community Affairs (DCA) and the Agency for Workforce Innovation (AWI) from representing clients in meetings of the Rural Economic Development Initiative (REDI) when, prior to leaving public employment, she participated in REDI meetings as a DCA representative. The Commission found that the former employee's participation in REDI meetings while in public employment did not make REDI her "agency," and concluded that she was not prohibited from representing persons or entities in such meetings.

In short, the Commission has found the restriction of Section 112.313(9)(a)4 necessarily is connected to a former employee actually having been employed by a particular agency. Thus, while a former employee may have worked with the personnel or become involved with the subject matter of an agency other than the one by which he or she was employed, that work or involvement will not trigger the restriction. See CEO 11-19 (note 8).

Applying this reasoning here, the fact that you provided advice to the Clemency Board and appeared before the Clemency Board in your capacity as Chair of the Commission on Offender Review does not make the Clemency Board—or any of its members—your "agency" for the purposes of Section 112.313(9)(a)3.a. The Commission on Offender Review remains a separate and distinct agency or government body from the Clemency Board, and the fact that you provided recommendations to the Clemency Board did not make you an officer or member of it. Thus, we find that you are not prohibited by Section 112.313(9)(a)3.a. from representing persons or entities before the Governor and Cabinet, even when they are serving in their capacity as Clemency Board members.³

QUESTION 3:

Are you prohibited by Section 112.313(9)(a)3.a, Florida Statutes, from representing persons or entities before the Legislature for two years after the date that you left the Commission?

Under the circumstances presented, this question is answered in the negative.

You next inquire whether the restriction of Section 112.313(9)(a)3.a will prohibit you from personally appearing before the Legislature for compensation on behalf of persons or entities for two years after leaving public service. You indicate that while acting as Chair of the Commission on Offender Review, you represented the Commission before the Legislature by bringing budget requests and substantive proposals, and at times met with individual Legislators concerning such requests and proposals. You state that, on occasion, you also were asked by committee chairs or staff to provide additional information on criminal justice policies. As discussed in Question 2, the prohibition of Section 112.313(9)(a)3.a applies only to representing persons or entities before the agency or government body where you served as an officer or member. Therefore, inasmuch as you were not an employee or member of the Legislature, Section 112.313(9)(a)3.a does not restrict you as to the Legislature. The fact that you interacted with members of the Legislature and their staff, or that you brought substantive proposals before the Legislature commensurate with your service as Chair of the Commission on Offender Review, does not make the Legislature an agency or government body of yours for the purpose of Section 112.313(9)(a)3.

Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2016, and RENDERED this 26th day of October, 2016.

____________________________________

Matthew F. Carlucci, Chair

^[1] The term "represent" is defined in Section 112.312(22), Florida Statutes.

^[2] You also indicate you had additional contact with the Governor and Cabinet because—as Chair of the Commission on Offender Review—you provided written updates to them each month as an agency head.

^[3] However, where your representation before the Clemency Board entails written and/or oral communication with employees of the Commission on Offender Review, we find that you are prohibited by Section 112.313(9)(a)3.a from engaging in such practices. As discussed in Question 1, the Commission on Offender Review is considered to be your "agency" for the purpose of Section 112.313(9)(a)3.a. and you are prohibited for two years after leaving state employment from certain contact with its employees, as defined in Section 112.312(22).