CEO 92-47 -- October 15, 1992

CONFLICT OF INTEREST

APPLICATION OF STATUTES PROHIBITING LOBBYING FOR

TWO YEARS AFTER LEAVING OFFICE OR EMPLOYMENT

TO SCHOOL BOARD MEMBERS AND EMPLOYEES

To: Frank A. Howard, Jr., Attorney, Dade County School Board (Miami)

SUMMARY:

Because a "special district" is not defined to include a school district, Section 112.313(13), Florida Statutes (Supp. 1992), does not apply to permit the adoption by a school board of a resolution prohibiting the representation of another person by a former appointed officer or employee of the school board, before the school board, within two years of his vacation of office or termination of employment, and Section 112.313(14), Florida Statutes, does not apply to prohibit former elected school district officers from representing another before the school board within two years after his vacation of office.

QUESTION:

Are school board members and employees subject to the post office-holding and post employment restrictions of Sections 112.313(13) and 112.313(14), Florida Statutes (Supp. 1992)?

Your question is answered in the negative.

In your letter of inquiry, you advise that you are requesting this opinion on behalf of Janet McAliley, Chairperson of the School Board of Dade County. You advise that the School Board is concerned about whether Sections 112.313(13) and 112.313(14), Florida Statutes, as amended and enacted by the 1992 Legislature, apply to appointed officers and employees of the District School Board, as well as to elected members of the School Board. These sections, which took effect on October 1, 1992, provide respectively:

COUNTY AND MUNICIPAL ORDINANCES REGULATING FORMER OFFICERS OR EMPLOYEES.--The governingbody of any county or municipality may adopt an ordinance and the governing body of any special district may adopt a resolution providing that an appointed county, municipal, or special district officer or a county, municipal, or special district employee may not personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or employee for a period of 2 years following vacation of office or termination of employment, except for the purposes of collective bargaining. Nothing in this section may be construed to prohibit such ordinance.

LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.--A person who has been elected to any county, municipal, or special district office may not personally represent another person or entity for compensation before the governing body of which he was an officer for a period of 2 years after he vacates that office. The provisions of this subsection shall not apply to elected officials holding office as of the effective date of this act, until after their next election.

Prior to its amendment, Section 112.313(13) permitted the governing body of any county or municipality to adopt an ordinance prohibiting officers or employees thereof, for a period of two years following their vacation of office or termination of employment, from personally representing another person or entity for compensation before the county or municipality of which they had been officers or employees. Effective October 1, 1992, Chapter 92-35, Laws of Florida, amended Section 112.313(13) by making this section applicable only to appointed officers and employees and expanding its scope to include the governing body of "special districts" and the officers and employees thereof. The legislation also created Section 112.313(14), Florida Statutes, which prohibits an elected county, municipal, and "special district" officer, for a period of two years after leaving office, from personally representing another person or entity for compensation before the governing body of which he or she was an officer.

You write that the term "special district" is not defined in the Code of Ethics for Public Officers and Employees. We note that the only reference to "special districts" appearing in the Code of Ethics prior to the 1992 amendments appear at Section 112.322(9), Florida Statutes. This section provides:

The Commission on Ethics shall report to the Special District Information Program of the Department of Community Affairs by November 1 each year, the names of special district local officers certified as delinquent in filing financial disclosure.

This provision was added to the Code of Ethics through the enactment of Chapter 89-169, Laws of Florida, which also enacted "The Uniform Special District Accountability Act of 1989" (codified as Chapter 189, Florida Statutes). This law was adopted in order "to provide general provisions for the definition, creation, and operation of special districts." "Special district" is defined at Section 189.403(1), Florida Statutes, to mean

[A] local unit of special-purpose, as opposed to general-purpose, government within a limited boundary created by general law, special act, local ordinance, or by rule of the Governor and Cabinet. The special purpose or purposes of special districts are implemented by specialized functions and related prescribed powers. The term does not include a school district, a community college district, a special improvement district created pursuant to s. 285.17, a municipal services taxing or benefit unit as specified in s. 125.01 or a board which provides electrical services and which is a political subdivision of a municipality or is part of a municipality. [Emphasis supplied.]

Prior to the enactment of Chapter 189, Florida Statutes, in CEO 88‑37, we employed the definition of "special district" appearing in Section 218.31(5), Florida Statutes. "Special district" was defined there to mean

[A] local unit of special government, except district school boards and community college districts, created pursuant to general or special law for the purpose of performing prescribed specialized functions, including urban service functions, within limited boundaries.

However, this definition was amended in Chapter 89‑169, Laws of Florida, to provide:

'Special district' means a special district as defined in s. 189.403(1). [Section 218.31(5), Florida Statutes.]

Apart from the specific exemption for school districts contained within the definition of "special district" at Section 189.403(1), Florida Statutes, it is apparent that "special districts" are created by general law, special act, local ordinance, or by rule of the Governor and Cabinet, whereas school districts and district school boards are created pursuant to Section 4(a), Article IX, Florida Constitution. Thus, applying the rule of statutory construction which provides that the express mention of one thing in a statute implies the exclusion of other things not mentioned (expressio unius est exclusio alterius), we find that a school district is not a "special district." See, generally, Thayer v, State, 335 So.2d 815, 817 (Fla. 1976) (where statute enumerates things on which it is to operate or forbids certain things, it is ordinarily to be construed as excluding from its operation all those things not expressly mentioned); Dobbs v. Sea Isle Hotel, 56 So.2d 341, 342 (Fla. 1952); and Ideal Farms Drainage District v. Certain Lands, 19 So.2d 234 (Fla. 1944).

You also note that the term "local officers" (used in the title to the newly enacted Section 112.313(14), Florida Statutes) is not defined in the body of Section 112.313, Florida Statutes. The term is defined, however, at Section 112.3145, Florida Statutes, to include any person elected to office in any political subdivision of the state. You suggest that this definition is limited to the purposes of Section 112.3145, relating to disclosure of financial interests and clients represented before agencies. However, in other opinions, we have interpreted the term "local public officer" by analogy with the definitions of "local public officer" and "state officer" provided in Section 112.3145. See CEO 88-3 and CEO 87-95.

In Section 112.3145, the term "local officer" includes appointed and elected members of boards of political subdivisions of the State. "Political subdivision" is defined at Section 1.01(8), Florida Statutes, to include certain types of districts as well as "all other districts in this state." Therefore, a school district is a political subdivision and school board members are local officers under the Code of Ethics. However, because the school district is not a "special district," Section 112.313(14), Florida Statutes (Supp. 1992), does not prohibit the lobbying of a school board by former members of the school board within two years of their vacation of office. We have reviewed Senate and House staff analyses relating to the 1992 legislation and find no clear evidence that the Legislature intended to include school districts as "special districts" for purposes of this law.

Accordingly, we find that Section 112.313(13), Florida Statutes (Supp. 1992), does not authorize a school board to adopt a resolution prohibiting the representation of another person by an appointed officer or employee before the school board within two years of either vacation of office or termination of employment, and Section 112.313(14), Florida Statutes (Supp. 1992), does not prohibit a former elected school district officer from representing another before the school board within two years after leaving office.