LOBBYING RESTRICTIONS

FORMER MEMBER OF THE COLLIER COUNTY PLANNING COMMISSION

To: Robert Klucik, Esq. (Ave Maria)

SUMMARY:

A person who currently is an elected special district officer in a special district with ad valorem taxing authority and who formerly was a commissioner on a county planning commission would not be prohibited from representing persons and entities for compensation on land use matters before his former agency under Section 112.313(14), Florida Statutes. Under the facts presented, the Post-Office Lobbying Ban in Article II, Section 8(f)(3), Florida Constitution, would not apply to prohibit him from lobbying the county planning commission. Also, under the facts presented, the In-Office Lobbying Ban in Article II, Section 8(f)(2), Florida Constitution, would not prohibit him from representing clients before the county planning commission and the Board of County Commissioners on land use matters as that would be considered representation in administrative actions, not lobbying. Referenced is CEO 23-6.

QUESTION:

Would an attorney who is currently an elected special district officer in a special district with ad valorem taxing authority and who is a former commissioner of a County Planning Commission be prohibited from representing clients in land use matters before the Planning Commission and/or the Board of County Commissioners?

This question is answered in the negative.

You were elected to serve on the Board of Supervisors of the Ave Maria Stewardship Community District and your term of office expires in 2026.¹ You are one of two Board members that were elected by qualified electors in the District. The remaining three Board members were elected by the landowners on a one-acre, one-vote basis. Under Section 190.006(3), Florida Statutes, election by qualified electors is a condition precedent to the District exercising its authority to impose ad valorem taxes.

You also were appointed to serve as a Commissioner on the Collier County Planning Commission ("Planning Commission"), which is an advisory board that makes recommendations to the Collier County Board of County Commissioners. Your last day on the Planning Commission was September 30, 2024.

You seek to advise clients on land use matters that might come before the Planning Commission and/or the Board of County Commissioners and to represent them in those matters before the Planning Commission and/or the Board of County Commissioners. You anticipate giving legal advice to clients regarding the planning rules and regarding how to obtain the necessary county approval to achieve their goals with respect to land use, helping clients prepare and submit the necessary documents to the county, and possibly representing the clients before the Planning Commission and the Board of County Commissioners to help them obtain approval for their land use requests.

In a phone conversation, you mentioned that your representation would include such things as trying to obtain an exception or a deviation for a client. You also indicated in your submissions that the County has adopted a Resolution establishing the procedures and provisions in Section 286.0115(2), Florida Statutes, for quasi-judicial proceedings on local government land use matters.

With this background, you ask whether Florida law would prohibit you from advising clients on land use matters that might come before the Planning Commission and/or the Board of County Commissioners and from representing them in those matters before those entities.

Relevant to your inquiry, there are three ethical standards containing restrictions on compensated representation and lobbying. There is a two-year statutory ban against former local officers representing persons or entities for compensation before their former government body or agency (i.e., Section 112.313(14), Florida Statutes). There are also two bans against lobbying found in Article II, Section 8(f), Florida Constitution. The first ban, found in Article II, Section 8(f)(2), Florida Constitution, is a ban against lobbying for compensation before "the federal government, the legislature, any state government body or agency, or any political subdivision of this state" while in office. The second lobbying ban, found in Article II, Section 8(f)(3), Florida Constitution, is a six-year ban, which begins at the time one leaves one's public position, against lobbying for compensation before certain specified entities. We refer to these as the "In-Office" Lobbying Ban and the "Post-Office" Lobbying Ban, respectively.

Regarding the two-year representation ban for former local officers, Section 112.313(14), Florida Statutes, provides:

LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.—A person who has been elected to any county, municipal, special district, or school district office or appointed superintendent of a school district 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

(b) The "government body or agency" of any other county elected officer is the office or department headed by that officer, including all subordinate employees.

(c) The "government body or agency" of an elected municipal officer consists of the governing body of the municipality, the chief administrative officer or employee of the municipality, and their immediate support staff.

(d) The "government body or agency" of an elected special district officer is the special district.

(e) The "government body or agency" of an elected school district officer is the school district.

(Emphasis added.)

This provision prohibits "former local officers" of certain specified elective offices—including a member of a board of county commissioners, any other county elected officer, and an elected special district officer—from representing another person or entity, including a client or employer, before their former government body or agency.

Until recently, you held two offices. You formerly were an appointed commissioner on the Collier County Planning Commission and you are currently an elected Board Member of the Ave Maria Stewardship Community District. Because you are not the former member of one of the specified elective offices, this prohibition does not apply to you.

Next, we shall examine whether the In-Office Lobbying Ban, found in Article II, Section 8(f)(2), Florida Constitution, would be applicable to your situation. That is, we will look at whether the ban against lobbying for compensation while in office (i.e., while in your position as a member of the Board of Supervisors of the Ave Maria Stewardship Community District) would prohibit your representing clients with land use matters coming before the Planning Commission and/or the Board of County Commissioners. The In-Office Lobbying Ban provides:

A public officer shall not lobby for compensation on issues of policy, appropriations, or procurement before the federal government, the legislature, any state government body or agency, or any political subdivision of this state, during his or her term of office.

A "public officer," for purposes of the lobbying bans found in Article II, Section 8(f) of the Florida Constitution, is defined as:

. . . a statewide elected officer, a member of the legislature, a county commissioner, a county officer pursuant to Article VIII or county charter, a school board member, a superintendent of schools, an elected municipal officer, an elected special district officer in a special district with ad valorem taxing authority, or a person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government.

See Art. II, § 8(f)(1), Fla. Const. (emphasis added).

The In-Office Lobbying Ban is implemented by Section 112.3121, Florida Statutes, defining many of the terms used in the constitutional prohibition. Section 112.3121(3), Florida Statutes, defines an "Elected special district officer in a special district with ad valorem taxing authority" as:

. . . an officer elected by the qualified electors of a special district, or appointed to fill an unexpired term of such officer, and does not include an officer elected by landowners when an election by qualified electors is a condition precedent to the exercise of the ad valorem taxing authority under s. 190.006(3). If such condition precedent does not apply, the term "elected special district officer in a special district with ad valorem taxing authority" means an officer elected by any method prescribed by law for a special district with ad valorem taxing authority.

It appears you are a public officer subject to the restrictions of the In-Office Lobbying Ban because you are an officer elected by the qualified electors of the Ave Maria Stewardship Community District.

"Lobby" is defined in Section 112.3121(11)(a)3., Florida Statutes, as:

. . . to influence or attempt to influence an action or decision through oral, written, or electronic communication and, with respect to:

3. A political subdivision, is limited to influencing legislative actions or other discretionary decisions, but does not include administrative actions . . . .

(Emphasis added.)

Section 112.3121(1), Florida Statutes, further defines "administrative action," in relevant part, as:

. . . for a political subdivision not subject to chapter 120, any action or a decision on a license, permit, waiver of regulation, development order or permit, or development agreement; any quasi-judicial proceeding on local government land use matters regulated by s. 286.0115(2) . . . .

Section 286.0115(2), Florida Statutes, states that a county or a municipality may adopt an ordinance or resolution establishing the procedures and provisions for quasi-judicial proceedings on local government land use matters. See § 286.0115(2)(a), Fla. Stat. You indicated Collier County has adopted a Resolution that incorporates the procedures for quasi-judicial proceedings on local government land use matters set forth in Section 286.0115(2).² Thus, the proceedings before the County Planning Commission and the Board of County Commissioners would constitute "administrative action" and your representation of clients on land use matters in those venues is not subject to the lobbying ban. You also indicate that you would be assisting clients to obtain exceptions or deviations related to land use. It appears that this would be consistent with seeking "[an] action or a decision on a license, permit, waiver of regulation, development order or permit, or development agreement" on behalf of your clients. These actions are also considered "administrative actions" and your representation of clients in conjunction to them is not subject to the lobbying ban.³

Lastly, let us look at the six-year Post-Office Lobbying Ban, found in Article II, Section 8(f)(3) of the Florida Constitution, which provides:

A public officer shall not lobby for compensation on issues of policy, appropriations, or procurement for a period of six years after vacation of public position, as follows:

a. A statewide elected officer or member of the legislature shall not lobby the legislature or any state government body or agency.

b. A person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government shall not lobby the legislature, the governor, the executive office of the governor, members of the cabinet, a department that is headed by a member of the cabinet, or his or her former department.

c. A county commissioner, a county officer pursuant to Article VIII or county charter, a school board member, a superintendent of schools, an elected municipal officer, or an elected special district officer in a special district with ad valorem taxing authority shall not lobby his or her former agency or governing body.

This provision prohibits public officers, specifically, statewide elected officers, members of the legislature, persons serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government, county commissioners, certain county officers, school board members, superintendents of schools, elected municipal officers, and elected special district officers in special districts with ad valorem taxing authority from lobbying their former agencies or governing bodies for compensation on issues of policy, appropriations, and procurement for a period of six years after they vacate their public positions. Given that this is a post-office holding restriction, we must analyze it relative to the office you vacated, not the office you currently hold.

The position you left, that of a Commissioner on a County Planning Commission, was plainly not that of "a statewide elected officer or member of the legislature," "a secretary, an executive director, or other agency head of a department of the executive branch of state government," or "a school board member, a superintendent of schools, [or] an elected municipal officer." Your position also was not that of "a county officer pursuant to Article VIII or county charter," because it is not listed among the positions that constitute county offices in Article VIII, Section 1(d), and because Collier County is not a chartered county. Nor were you a "county commissioner," because you served on a planning commission with responsibility to advise the county commission, not on the county commission itself. Finally, you were not "an elected special district officer in a special district with ad valorem taxing authority," because you were appointed, not elected, to the County Planning Commission. For all these reasons, the Post-Office Lobbying Ban does not presently restrict you.

In sum, the two-year representation ban found in Section 112.313(14), Florida Statutes, does not apply to you because the position you left, that of a Commissioner on the Planning Commission, is not a position to which the statute is applicable.

You would be subject to the In-Office Lobbying Ban, by virtue of your being an elected special district officer in a special district with ad valorem taxing authority, but the definition of "lobbying," as it applies to the context of political subdivisions, such as counties, does not include administrative actions. What you have described doing, in representing your clients in land use matters before the Planning Commission and the Board of County Commissioners, would constitute administrative actions. Therefore, you would not be considered to be lobbying if you engaged in the proposed representations and would not be in violation of the In-Office Lobbying Ban.

Finally, a Commissioner on the Planning Commission is not included in the list of former positions for which the six-year Post-Office Lobbying Ban found in Article II, Section 8(f)(3), Florida Constitution, is applicable. Therefore, the six-year Post-Office Lobbying Ban is not applicable to you under the facts presented.

If and when you eventually leave your office with the Board of Ave Maria Stewardship Community District, however, please contact us to discuss the applicability of the In-Office Lobbying and Post-Office Lobbying Bans.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2024, and RENDERED this 30th day of October, 2024.

____________________________________

Luis M. Fusté, Chair

^[1]The Ave Maria Stewardship Community District is located in Eastern Collier County.