CEO 81-57 -- September 17, 1981

SUNSHINE AMENDMENT

STATE SENATOR RESIGNING TO ACCEPT POSITION WITH STATE AGENCY REQUIRING LEGISLATIVE LOBBYING

To: The Honorable Sherman S. Winn, State Senator, District 34, Miami

SUMMARY:

The Sunshine Amendment in Article II, Section 8(e), Florida Constitution, prohibits a member of the Legislature from personally representing 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. This provision would prohibit a former State Senator from accepting employment as Division Director of a State department within two years after leaving office, where that employment would require him to engage in lobbying activities before the Legislature in behalf of the Division. As the constitutional provision prohibits the representation of "another person or entity," it appears that the prohibition would extend to governmental entities as well as private entities, the Commission not having discovered any evidence that those who adopted the Amendment intended otherwise. The provision would not prohibit a former Senator from accepting such employment if the duty of lobbying were transferred to another person, since the restriction contemplates only "personally" representing another person or entity before the Legislature.

Article II, Section 8(e), Florida Constitution, however, would not prohibit a former Senator from accepting employment as Division Director of a State department, where his employment would not require him to engage in lobbying activities before the Legislature in behalf of the Division but where he might be requested by the Legislature to appear before a legislative committee or subcommittee as a witness or for informational purposes. This provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. However, an appearance before a legislative committee or subcommittee upon the request of the committee or subcommittee rather than upon the former senator's initiative would not constitute lobbying.

QUESTION 1:

This question is answered in the affirmative.

In your letter of inquiry you advise that presently you are a member of the Florida Senate and that you are being considered for employment as Director of the Division of Hotels and Restaurants in the Florida Department of Business Regulation. We are advised by the Secretary of the Department that representation of the Division's interests before the Legislature normally is a duty and responsibility of the Division Director. Therefore, you question whether Article II, Section 8(e), Florida Constitution, would permit you to resign from the Senate, to accept the position of Division Director, and as Director to represent the Division as a lobbyist before the Legislature.

The Sunshine Amendment of the Florida 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. . . . [Article II, Section 8(e), Florida Constitution.]

Thus, as a member of the Legislature, you are prohibited from personally representing another person or entity for compensation before the Legislature for a period of two years following the date on which you leave office.

It is apparent that as Division Director you would be compensated for the performance of your responsibilities, including the responsibility of personally representing the Division's interests before the Legislature. Since these representations would occur within two years after you have left the Senate, the only question which we must resolve is whether by representing the Division's interests you would be "representing another person or entity" before the Legislature.

The Florida Supreme Court, interpreting the second sentence of Article II, Section 8(e), in the case of Myers v. Hawkins, 362 So. 2d 926 (Fla. 1978), stated:

We have already held that the intent of the framer of a constitutional provision adopted by initiative petition will be given less weight in discerning the meaning of an ambiguous constitutional term that [sic] the probable intent of the people who reviewed the literature and the proposal submitted for their consideration.

Myers, at p. 930, citing Williams v. Smith, 360 So. 2d 417 (Fla. 1978). On this basis, the Supreme Court in Myers examined the terminology of the constitutional provision and the explanatory flyer which accompanied the Sunshine Amendment petition when it was circulated for placement on the ballot. The Court then made its interpretation in light of the primary purpose for which the provision had been adopted.

We are aware that Governor Askew, as one of the framers of the Sunshine Amendment, has indicated that it was not his intention that Article II, Section 8(e) prohibit a former legislator from representing a public entity in a public capacity before the Legislature during the two years following vacation of office. However, given the Supreme Court's direction in Myers, we are required to give greater weight to the probable intent of the people who reviewed and adopted the Sunshine Amendment than to the intent of its framers. Similarly, in interpreting a statute a court cannot consider affidavits of members of the Legislature stating their views of what the Legislature intended. McLellan v. State Farm Mutual Automobile Company, 366 So. 2d 811 (Fla. 4th D.C.A. 1979).

The terminology of the provision -- "another person or entity" -- does not indicate that the provision would apply only to representations of private or nongovernmental entities. By use of the term "person," as distinct from an "entity," we believe the Amendment intended to include only natural persons, although the word "person" may include governmental bodies in some instances. City of St. Petersburg v. Carter, 39 So. 2d 804 (Fla. 1949). The term "entity" as generally defined is broad enough to include both private and governmental organizations. For example, Webster's Third New International Dictionary (1966) defines "entity" at p. 758 as "something that has objective or physical reality and distinctness of being and character [;] something that has a unitary and self- contained character." An entity may be a corporate entity, a legal entity, a public entity, or a sovereign entity, among others. See 14A Words and Phrases, 395.

In addition, we note that the Legislature has defined the term "agency" for purposes of the Code of Ethics for Public Officers and Employees as meaning

any state, regional, county, local or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [E.S.] [Section 112.312(2), Florida Statutes (1979).]

The explanatory flyer referenced by the Supreme Court in Myers, entitled "An Explanation of the Sunshine Amendment," provides:

The amendment prohibits a member of the legislature or the holder of a statewide elective office from representing any client for a fee before the body or agency of which he or she was a member for a period of two years after leaving office. This provision provides a strong framework for conflict-of-interest legislation to prevent influence peddling and the use of public office to create opportunities for personal profit once officials and employees leave office. The legislature, once again, has the flexibility to include other public officials or employees in the prohibition. The subsection also prohibits members of the legislature from representing clients before state agencies except before judicial tribunals. Judicial tribunals would include the courts, the Industrial Relations Commission and judges of industrial claims.

. . . . The people of Florida need additional assurances that their public officials are serving the public interest, and not a private interest. They need assurances that public office is regarded by officials as a public trust and not as a public license.

. . . The supporters of The Sunshine Amendment do not maintain that it would rid government of corruption and deception for all time. But they feel it would cause second thoughts by those who may otherwise have abused their public trust for their own personal gain. And they contend that it would help establish a more serious and responsible tone in government -- that it would help reassure the people that their public officials are actually representing the people and not themselves, that it would help restore the confidence of the people in their leaders and their government.

This explanation of Article II, Section 8(e), however, does not assist us in answering the question you have posed, as it does not indicate clearly that only clients who are private persons or entities would come within the provision. Furthermore, the amendment is phrased in broader terms than the example given in the explanation, since representation of "another person or entity for compensation" would comprehend situations where that person or entity is not a "client" and where some form of compensation other than a "fee" is received. Nor does the explanation indicate that a public official could abuse his public trust only by benefiting a private person or entity; instead, it clearly contemplates that the abuse of trust results from an official's valuing his personal gain above the public interest. In our view, personal gain may be derived from both private and public entities.

Our staff has reviewed additional materials concerning the Sunshine Amendment presently located in the State Archives and has discovered nothing which would assist us in resolving the issue you have posed.

Another source of interpretative material used by the Florida Supreme Court to interpret the Sunshine Amendment is Governor Askew's address to the Legislature following the adoption of the Amendment. Williams v. Smith, 360 So. 2d 417 9 (Fla. 1978). The Governor's supplementary message on ethics and elections contained the following remarks:

Another provision of the Sunshine Amendment that requires further implementation is the section prohibiting the appearance of certain elected officials before any board on which they served in the two years following their departure from the respective board. To the extent that law and the Constitution permit, we should consider extending a similar prohibition to other appointed and elected officials. I recommend that all elected officials be included who are not covered by the Sunshine Amendment. I strongly urge the Legislature to adopt comprehensive legislation to ensure that public officers and high ranking state employees do not use their public service career, and contacts developed in that capacity, to later enrich themselves at the expense of the public. This would increase public confidence that matters coming before our agencies and boards are decided on their merits. [Journal of the House of Representatives, April 5, 1977, p. 22]

Unfortunately, these remarks do not address the question of whether governmental entities were contemplated by the Amendment, but merely reiterate that one's public service career and contacts developed in that capacity should not be used to enrich oneself at the expense of the public. This expression of intent, we believe, would apply equally whether one represented a private or a public entity after leaving office.

It is apparent from the explanatory flyer and from the language of the Constitution that the provision was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. In the context of the Legislature, the provision seeks to preserve the integrity of the legislative process by ensuring that decisions of members of the Legislature will not be made out of regard for possible employment as lobbyists. Since legislative decisions affect those in the public sector as well as those in the private sector, it would seem to be equally important that legislative decisions not be colored by regard for future lobbying opportunities in behalf of public entities.

In addition, the provision recognizes that the influence and expertise in legislative matters gained through a legislator's public service would give the legislator a high value and a competitive advantage within the marketplace for lobbyists. These opportunities for personal profit exist within both the private and the public sector.

Given the intent, it is not difficult to understand that the prohibition of Article II, Section 8(e) would not preclude a former legislator who has been elected to another public office from lobbying the Legislature as part of his official responsibilities. In that situation, the people have selected the former legislator through an electoral process and there simply is not the opportunity for use of prior public office to acquire lucrative employment as a lobbyist. Nor would the former lobbyist be peddling the influence he has gained through public service within the marketplace for lobbyists. We do not believe that an elected official is representing "another person or entity" when approaching the Legislature in the fulfillment of his public duties.

For these reasons, we agree with the conclusion reached by the Attorney General in his opinion of March 6, 1978 that an elected official, within two years following the end of his legislative term, may lobby the Legislature as part of his official duties. However, since the rationale of that opinion was based upon the Explanation of the Sunshine Amendment, which we have found to be ambiguous, we disagree with the opinion's statement that Article II, Section 8(e) was directed only toward the representation of private interests or organizations.

We also disagree with the proposition that the term "entity" should include only private entities because of the general rule of statutory construction that the government and its agencies are not ordinarily to be considered as within the purview of a statute unless the intention to include them clearly is shown. See 82 C.J.S. Statutes, 317. Beyond the legal arguments regarding the applicability of such a rule in this context, we are charged with determining the probable intent of the people who adopted the Sunshine Amendment. We do not believe that the people intended or understood that this particular rule of statutory construction could or would be applied.

We have examined other provisions of the Sunshine Amendment to determine whether the terms "person or entity" could be found to apply only to private persons or entities, so that we might be able to conclude that your proposed employment would not be prohibited. The terms appear in the second sentence of Section 8(e), which prohibits a legislator from representing another person or entity for compensation before State agencies other than judicial tribunals. However, the purpose of that provision -- to prevent those with budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions when appearing as compensated advocates for others -- also would seem to be served by interpreting "entities" to include governmental entities. It does not appear that the use of "state agency" in this provision contrasts with the use of "person or entity" in such a way that we could conclude that an "entity" must be something other than a "state agency." Rather, it appears that the use of "state agency" recognizes that legislators are perceived as having greater authority over State agencies than any other category of governmental entity.

Additionally, the terms "person or entity" appear in Section 8(c), which provides that any person or entity inducing a public officer or employee to breach the public trust for private gain shall be liable to the State for financial benefits received. In this provision, it is the term "private gain" which is essential to the meaning of the provision; in contrast, it is significant to note that the word "private" does not appear in Section 8(e).

We have found no basis to conclude that lobbying of governmental entities somehow is either more or less important or is more or less valuable to the people of Florida than lobbying in behalf of private entities so that the Sunshine Amendment's prohibition should be restricted to the latter. We have discovered no evidence that the framers of the Amendment or the people who adopted it intended such a result. Nor does it appear that the people's constitutional right "to instruct their representatives, and to petition for redress of grievances" (Article I, Section 5, Florida Constitution) would not permit such a distinction. The term "entity," as generally understood, is so broad that we believe the people would not have understood it to mean only "legal entities," such as private corporations, as distinct from governmental entities. As we read the Explanation of the Sunshine Amendment and the other provisions of the Amendment itself, it appears that the people were provided with nothing which clearly would indicate that Article II, Section 8(e) encompassed only private entities rather than all entities, both public and private.

Accordingly, until judicially clarified to the contrary, we are of the opinion that Article II, Section 8(e) of the Florida Constitution would prohibit you from resigning your office as a State Senator and accepting employment as Division Director of a State department, where that employment would require you to engage in lobbying activities before the Legislature in behalf of the Division. However, since omissions in constitutional language are presumed to be intentional and since the constitutional provision only prohibits you from "personally" representing another person or entity before the Legislature within two years after leaving office, we find nothing in Article II, Section 8(e) which would prohibit you from being employed as Division Director were the duty to represent the Division's interests before the Legislature transferred to another person in the Department or Division during the two-year period following your resignation from the Senate. This interpretation, we believe, will assure that government will not lose your talents or the experience and perspective in governmental affairs which you have gained as a member of the Legislature.

QUESTION 2:

Does the Sunshine Amendment to the State Constitution, Article II, Section 8(e), prohibit you from resigning your office as a State Senator and accepting employment as Division Director of a state department, where that employment would not require you to engage in lobbying activities before the Legislature in behalf of the Division but where you might be requested by the Legislature to appear before a legislative committee or subcommittee as a witness or for informational purposes?

Your question is answered in the negative.

As we have explained in our response to your first question, the post officeholding restriction of the Sunshine Amendment was intended to prevent influence peddling and the use of public office to create opportunities for personal profit through lobbying once an official leaves office. By the use of the term "lobbying," we mean affirmative action intended to influence the legislative process. The situation presented by your question, however, contemplates only an appearance before a legislative committee or subcommittee upon the request of the committee or subcommittee, rather than upon your initiative.

Such actions, we believe, do not constitute lobbying and therefore would not fall within the intent of the prohibition of Article II, Section 8(e). Were the provision to be interpreted otherwise it would have the effect of preventing the Legislature from requesting former legislators to appear and present testimony or other information, thus hampering the Legislature in the legitimate exercise of its constitutional responsibilities. In our opinion, this result clearly was not intended by the Sunshine Amendment.

In addition, we note that Section 11.061, Florida Statutes, requires the registration of non-legislative State employees who seek "to encourage the passage, defeat, or modification of any legislation by personal appearance or attendance before the House of Representatives or the Senate, or any committee thereof. . . ." However, persons who appear before a committee or subcommittee of the House of Representatives or Senate at the request of the committee or subcommittee chairman as a witness or for informational purposes are not required to be registered as lobbyists. Section 11.061(2)(b), Florida Statutes. As these statutes were in effect at the time of the drafting and adoption of the Sunshine Amendment, it is logical to assume that those who drafted the Amendment were aware of the Legislature's distinction between lobbying and non-lobbying activities of State employees.

Accordingly, it is our opinion that Article II, Section 8(e) of the Florida Constitution would not prohibit you from resigning your office as State Senator and accepting employment as Division Director of a State department, so long as in that position you do not engage in lobbying activities before the Legislature in behalf of the Division. Further, we are of the opinion that Article II, Section 8(e) would not prohibit you from appearing before a committee or subcommittee of the Legislature at the request of the committee or subcommittee chairman as a witness or for informational purposes.