CEO 83-4 -- January 27, 1983

SUNSHINE AMENDMENT

FORMER MEMBER OF HOUSE OF REPRESENTATIVES BEING RETAINED BY THE HOUSE AS SPECIAL LEGAL COUNSEL

To: The Honorable H. Lee Moffitt, Speaker, Florida House of Representatives

SUMMARY:

Article II, Section 8(e), Florida Constitution, does not prohibit a former member of the House of Representatives from being retained by the House as special legal counsel to the House and its members for compensation within the two-year period following vacation of his office. Under the circumstances presented, the special legal counsel will not be engaged in lobbying the House in behalf of another person or entity, but instead will be employed to provide services for the House.

QUESTION:

May a former member of the House of Representatives who is subject to Article II, Section 8(e), Florida Constitution, be retained by the House as special legal counsel to the House and its members for compensation within the two-year period following vacation of office without violating the prohibition of that constitutional provision?

Your question is answered in the affirmative.

In your letter of inquiry you advise that as Speaker of the House of Representatives you have appointed a number of task forces to assist the standing, substantive committees in preparing legislation for introduction and consideration at the 1983 legislative session. Each task force generally consists of representatives of the legislative and executive branches of government as well as representatives from the private sector interested in that particular area. The goal of each task force is to develop legislation for enactment during the 1983 session.

You also advise that it is your intention to retain one of the members of a task force as special legal counsel to the House and its members. That particular individual is a former member of the House of Representatives who decided not to seek reelection at the general election of November, 1982. The duties of the special counsel will include functioning as a liaison between the House, the Committee on Natural Resources, and the task force on water, as well as attending meetings and consulting with you and the other members of the House on water issues. Finally, you advise that you are concerned about any potential application to this situation of the prohibition contained in Article II, Section 8(e), Florida Constitution.

That provision of the Constitution provides in relevant part:

No member of the legislature 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 two years following vacation of office.

In our view, the special legal counsel to the House and its members will not be representing a person or entity before the House of Representatives. Instead, this person will be employed by the House of Representatives to provide services to that body.

As recognized by the Supreme Court, the post-officeholding ban is directed against lobbying activities. Askew v. Firestone, 421 So.2d 151 (Fla. 1982). In this sense, the constitutional provision prohibits a former House member from being employed by a person or entity to influence the legislative process in favor of that person or entity, or in favor of the interests that person or entity represents. We perceive a significant distinction between the situation where a former House member is employed to provide services for a person or entity involving lobbying before the House of Representatives, and the present situation, in which a former member will be employed to provide services for the House of Representatives.

Accordingly, we find that Article II, Section 8(e), Florida Constitution, does not prohibit a former member of the House of Representatives from being retained by the House as special legal counsel to the House and its members for compensation within the two- year period following vacation of office.