CEO 91-49 -- September 13, 1991

SUNSHINE AMENDMENT

FORMER GOVERNOR'S OFFICE ATTORNEY MEDIATING CASES

PENDING BEFORE COMMISSION FOR WHICH HE WAS COUNSEL AND

CASES IN WHICH ONE OF PARTIES WAS PARTY IN CASE IN

WHICH ATTORNEY DRAFTED THE COMMISSION'S FINAL ORDER

To: Jonathan M. Davidson, Attorney, Tallahassee

SUMMARY:

Section 112.3141(1)(d), Florida Statutes, does not prohibit a former Senior Attorney with the Governor's Office assigned to work as counsel to the Administration Commission from mediating cases pending before the Commission within 2 years of vacating his former position. As a former Select Exempt Service employee, Section 112.3141(1)(d) would apply to him. However, because acting as a mediator or neutral third party is not the same as "representing" [as that term is defined at Section 112.312(18), Florida Statutes] a party before a former employing agency, he would not be prohibited by the Code of Ethics from acting as a mediator in such cases. For the same reason, he would not be prohibited from acting as a mediator in disputes pending before the Florida Land and Water Adjudicatory Commission or in cases in which the Department of Community Affairs is a party.

The former Senior Attorney also would not be prohibited by Section 112.3141(1)(d) from representing a party before the Department of Community Affairs because the Department of Community Affairs was not his "agency" for purposes of the applicability of this section to his representation of his client. His agency was the Administration Commission, for which he was assigned to act as counsel, and the Governor's Office of Planning and Budgeting, for which he had other secondary responsibilities.

Whether a former Senior Attorney can represent a client before his former employing agency does not depend on whether his proposed action is "advocacy" or "non-advocacy," but on whether the action required by the agency is a routine, ministerial function, leaving the agency with no discretion to take any action which might benefit his client. If there is no discretion left in the agency, then the action is permitted; if not, then it is prohibited.

QUESTION 1:

Does Section 112.3141, Florida Statutes, prohibit you, an attorney who was employed as a Senior Attorney in the Governor's Office of Planning and Budgeting and assigned as counsel to the Florida Administration Commission on matters concerning compliance with the Local Government Comprehensive Planning and Land Development Regulation Act [Chapter 163, Part II, Florida Statutes] from mediating a dispute pending before the Florida Administration Commission prior to the expiration of two years from the date that you vacated your position with the Governor's Office?

Your question is answered in the negative.

In your letter of inquiry, telephone conversation with staff, and letter responding to staff's questions, you advise that you were employed as a Senior Attorney [a select exempt position] in the Governor's Office of Planning and Budgeting from July 1989 through June 1990. In that position, you served as counsel to the Florida Administration Commission on matters concerning compliance with the Local Government Comprehensive Planning and Land Development Regulation Act [Chapter 163, Part II, Florida Statutes]. In that capacity, you were responsible for drafting final orders for cases in which the Department of Community Affairs was a party. You also provided informal opinions to staff and counsel for the Florida Land and Water Adjudicatory Commission. In addition, you were responsible for providing legal and policy analysis on matters concerning land use planning, environmental regulation, administrative law, and coastal zone management.

You write that you now are interested in acting as a mediator in disputes before the Administration Commission. These disputes would involve compliance with the Local Government Comprehensive Planning and Land Development Act [LGCPLDRA], Chapter 163, Part II, Florida Statutes. Parties to the disputes would include local governments, the Department of Community Affairs [DCA], and intervenors granted standing to challenge adoption of local plans. You are concerned about whether Section 112.3141(1)(d), Florida Statutes, would prohibit you from acting as a mediator at this time. This section provides as follows:

No agency employee shall personally represent another person or entity for compensation before the agency with whom he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

The Administration Commission was established pursuant to Section 14.202, Florida Statutes, as part of the Executive Office of the Governor. It is composed of the Governor and the Cabinet. It has planning and budgeting responsibilities under Chapters 215 and 216, Florida Statutes. It considers budget appeals from county property appraisers and sheriffs and considers agency applications for exemptions from the processes or proceedings governed by the Administrative Procedures Act. It also appoints the Director of the Division of Administrative Hearings. In addition, the Commission approves personnel rules and regulations for the Career Service System and the Senior Management Service prior to adoption by the Department of Administration. It has certain statutory duties under Chapter 380, Florida Statutes, such as the establishment of guidelines and standards for developments of regional impact and the designation of areas of critical state concern. On petition, pursuant to Section 163.3213, Florida Statutes, it reviews the state land planning agency's [DCA's] determination of the consistency of a local government's land development regulations with the local comprehensive plan. It also sits, pursuant to Section 380.07, as the Florida Land and Water Adjudicatory Commission [FLWAC] to review local government development orders in any area of critical state concern or in regard to any development of regional impact. In such cases, the property owner, the developer, an appropriate regional planning agency, or the state land planning agency may appeal the order to the FLWAC.

You anticipate that you would be selected as a mediator though a program established through the Florida Growth Management Conflict Resolution Consortium. The Consortium has been funded since 1987 by the Legislature through the Board of Regents and housed at the Florida State University and the University of Central Florida. Its purpose was the formation of a Consortium of conflict resolution experts knowledgeable about Florida's Growth Management system whose expertise is made available to Federal, State, regional and local governments, private industry, special interest groups, and members of the public in order to help them voluntarily negotiate, mediate, or otherwise resolve conflicts that arise in implementing Florida's integrated planning and growth management system. As required by Section 186.509, Florida Statutes, the Consortium is designed to be an alternative to the use of traditional dispute resolution mechanisms such as the courts and administrative hearing forums.

The Consortium's "Progress Report 1989 - 1991" describes its education and outreach programs which are provided through a network of mediators, growth management professionals, and researchers. Its staff manages a roster of over 70 dispute resolution specialists who are available for retention by parties to disputes as consultant mediators. The Consortium's staff convene pre-mediation meetings and help underwrite the mediation process. To date, the Consortium's work with State agencies has included using mediation in the comprehensive plan review process, in developing State fishing rules, in facilitating coordination of the State's environmental education initiatives, in mediating Department of Environmental Regulation [DER] enforcement disputes among state and federal agencies over management of the Big Cypress National Preserve, and in regional water policies. With the assistance of some Regional Planning Councils, the Consortium also has designed a pilot project to test mediation in interlocal and development of regional impact [DRI] permitting disputes.

Future planning includes: 1) working with the DER in expanding the Consortium's DER Enforcement Mediation Project and designing possible pilot projects relative to permitting and rulemaking at DER; 2) working with the DCA to design initiatives relating to the State's comprehensive planning policies and procedures, and resolving specific conflicts; 3) working with the Office of the Governor to help develop a pilot project to test the use of mediation in the DRI permit review process; and 4) working with Regional Planning Councils in order to increase utilization of the RPC Mediation Process through a pilot project to demonstrate the use of professional mediation to resolve interlocal disputes and controversies arising in the DRI permitting process.

With respect to the Environmental Enforcement Mediation Project, the Consortium has contracted with its panel of mediators at the rate of $500 per diem. It also pays their transportation costs. The parties, including DER, reimburse the Consortium for their proportionate share of the mediator's per diem fee. It manages the over-all process, including convening a pre-mediation meeting with the parties to discuss the project, the mediation process and to agree on a mediator, a mediation schedule, and cost sharing arrangements. The mediator is selected from a list containing the names of three mediators. If agreement cannot be reached using the first list, a second list is provided. If the parties cannot then agree to a mediator from the second list, the case is not pursued in the project.

You have explained that you would mediate cases involving compliance with the LGCPLDRA. These cases appear to be of the type involved in the Consortium's second project. This project involves the mediation of cases that ultimately may come before the Administration Commission. It involves the use of professional mediators to resolve four to six interlocal disputes under RPC informal mediation policies.

You have indicated that as part of the mediator selection process, the potential mediators have the responsibility to disclose prior relationships with parties to a pending dispute. Assuming for purposes of this analysis that Section 112.3141(1)(d) applies to you under these circumstances, disclosure alone may be insufficient to guard against the type of conflict the statute seeks to preclude. As we noted in CEO 81-57, the post-officeholding provision in the Sunshine Amendment, Article II, Section 8(e), Florida Constitution, was intended to prevent influence peddling and the use of public office to create opportunities for personal profit once officials leave office. We believe this also to have been the Legislature's intent in extending the prohibition to apply to post-employment situations by the enactment of Section 112.3141(1)(d), Florida Statutes.

For purposes of this provision, "employee" is defined to include "any person holding a position in the Selected Exempt Service as defined in s. 110.602. . . ." Section 112.3141(1)(b)1.a. As a person formerly holding a position in the Selected Exempt Service, you would come within this definition of "employee" to which Section 112.3141(1)(d) might apply.

In CEO 90-4, we noted that in construing or applying Article II, Section (8)(e) to a specific set of facts, there are seven areas of inquiry. These same seven areas plus one more apply to construing Section 112.3141(1)(d). First, was the affected person an "agency employee"? Second, is the former employee undertaking to "represent" someone or some entity? Third, is the former employee "personally" undertaking such representation? Fourth, is the former employee representing "another person or entity"? Fifth, is the representation "for compensation"? Sixth, is the representation "before the agency with whom he was employed"? Seventh, is the representation occurring within "a period of two years following vacation of position"? Finally, if there is representation, is the former employee employed by another agency of state government?

Although not defined in the Code of Ethics or in the statutory chapters relevant to the proposed subject matter of the mediation proceedings you would be involved in, "mediation" is defined similarly at Sections 39.01(35), 44.1011(2), and 489.105(14), Florida Statutes, as it is commonly understood. The definition in Section 44.1011(2) is as follows:

'Mediation' means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and nonadversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decisionmaking authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem-solving, and exploring settlement alternatives. . . ..

"Represent" has been defined at Section 112.312(18), Florida Statutes, as follows:

'Represent' or 'representation' means actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client. [Emphasis supplied.]

Because acting as a mediator or a neutral third party in cases that ultimately may come before the Administration Commission is not the equivalent of representing a person or entity before the entity with whom you were employed, we are of the view that you are not prohibited by the Code of Ethics from acting as a mediator in such cases. As a mediator, you would not be acting on behalf of a client before the Administration Commission; you would be attempting to facilitate an agreement that could be presented to the Administration Commission for final action. Accordingly, we find that you would not be "representing" a person or entity as that term is defined at Section 112.312(18) and, consequently, you would not be prohibited by the Code of Ethics from acting as a mediator in such cases.

Notwithstanding our finding, you should exercise caution to avoid violating the Florida Bar's Code of Professional Responsibility. Specifically, Disciplinary Rules 4-1.9 and 4-1.11 could be violated during the mediation process should you, as mediator, "caucus" or meet privately with one or all of the parties to the mediation and, in doing so, use information learned by you in your prior position and not generally available to the public. The purpose of the caucus among other things is to enable the mediator to gather additional information, to identify additional issues and interests, and to play "devil's advocate" with each party to the dispute to allow the parties to examine the strength of their interests and positions. Because of this potential problem, you may wish to obtain an ethics opinion from the Florida Bar.

QUESTION 2:

Does Section 112.3141(1)(d), Florida Statutes, prohibit you, an attorney formerly employed as a Senior Attorney in the Governor's Office of Planning and Budgeting and assigned as counsel to the Florida Administration Commission on matters concerning compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, from mediating a dispute either pending before the Florida Land and Water Adjudicatory Commission or in which the Department of Community Affairs is a party prior to the expiration of two years from the date that you vacated your position with the Governor's Office?

Your question is answered in the negative.

As we have explained in our response to your first question, the post employment restriction of Section 112.3141(1)(d) was intended to prevent influence peddling and the use of public position as a means of creating opportunities for personal profit once the public employee vacates his position. Because we are of the view that acting as a mediator or a neutral third party is not the equivalent of representing a person or entity, we find that you would not be prohibited from acting as a mediator in such cases.

QUESTION 3:

Does Section 112.3141(1)(d), Florida Statutes, prohibit you, an attorney formerly employed as a Senior Attorney in the Governor's Office of Planning and Budgeting and assigned as counsel to the Florida Administration Commission on matters concerning compliance with the Local Government Comprehensive Planning and Land Development Act, from representing a client before the Department of Community Affairs prior to the expiration of two years from the date that you vacated your position with the Governor's Office?

Your question is answered in the negative.

As we noted in our response to Question 1, in construing or applying Section 112.3141(1)(d) to a particular set of facts, there are eight areas of inquiry that must be answered in the affirmative for the prohibition to apply. One of those areas that would need to be answered in the affirmative is whether the representation is "before the agency with whom [you] were employed?" You have indicated that while you were working in the Governor's Office and assigned as counsel to the Administration Commission, your only connection with the Department of Community Affairs was the drafting of final orders for cases in which the Department of Community Affairs was a party. The issue for our determination is whether the Department of Community Affairs was your "agency" for purposes of the Code of Ethics.

The term "agency" is defined in Section 112.312(2), Florida Statutes, as

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.

In previous opinions, we have expressed the view that the legislative intent was to define an employee's "agency," for purposes of the Code of Ethics, as the lowest departmental unit within which his influence might reasonably be considered to extend. See CEO 77-83. As your position was assigned to the Administration Commission, we find that your agency for purposes of Section 112.3141(1)(d) was both the Administration Commission, because you acted as counsel to the Commission, and the Governor's Office of Planning and Budgeting because of your secondary responsibilities within that office. Although the Department of Community Affairs may have been a party to cases that came before the Administration Commission for final agency action, the DCA was not your agency for purposes of the applicability of Section 112.3141(1)(d), Florida Statutes, to your representation of a client before that agency. It should be noted that although you may have drafted the final orders of the Administration Commission, it was ultimately the Commission's responsibility to review and approve them prior to their issuance.

Accordingly, we find that you are not prohibited from representing a client or otherwise acting on behalf of a person or entity before the Department of Community Affairs.

QUESTION 4:

Does Section 112.3141(1)(d), Florida Statutes, prohibit you, an attorney who was employed as a Senior Attorney in the Governor's Office of Planning and Budgeting and assigned as counsel to the Florida Administration Commission on matters concerning compliance with the Local Government Comprehensive Planning and Land Development Regulation Act, from acting in a "non-advocacy role" before the Department of Community Affairs prior to the expiration of two years from the date that you vacated your position with the Governor's Office?

Your question is answered in the negative.

As we explained in our response to Question 3 and for the same reasons expressed in that response, we find that you would not be prohibited from acting in a "non-advocacy role" before the Department of Community Affairs prior to the expiration of two years from the date that you vacated your position with the Governor's Office. You should note that our response is based on the fact that it is our finding that your agency for purposes of the applicability of Section 112.3141(1)(d) is not the Department of Community Affairs, not on whether you are acting in an "advocacy" or "non-advocacy" role.

We are not clear what you mean by "non-advocacy role"; however, you should note the broad definition of "represent" or "representation" at Section 112.312(18), Florida statutes. In CEO 77-168, we advised that the Sunshine Amendment would prohibit a State legislator from notifying a State agency of a private client's intention to file suit under the Environmental Protection Act and participating in subsequent communications with the staff of that agency. In that case, discussions with the agency could have resulted in the agency's deciding to pursue an alleged environmental law violator, thereby substantially benefiting the former legislator/attorney's client. We viewed the purpose of Article II, Section 8(e), as securing the public trust by prohibiting a legislator from using the influence of his office over State agencies to gain benefits for a private client.

This reasoning also holds true, as we noted in our response to Question 1, for the applicability of Section 112.3141(1)(d), which was intended to preclude any temptation to place personal gain, economic or otherwise, above the discharge of his duty to the public. However, in CEO 82-83, we found that the Sunshine Amendment would not prohibit a former legislator from filing articles of incorporation or documents under the Uniform Commercial Code with the Department of State. As the filing of such documents is a routine, ministerial function of the Department of State, the agency has no discretion to take an action that could benefit the client of the legislator/attorney.

Accordingly, we find that because the Department of Community Affairs was not your "agency" for purposes of the applicability of Section 112.3141(1)(d) to your "non-advocacy role," this section would not prohibit you from taking any action on behalf of your client while playing this role. We find that the permissible representation depends not on whether the action is "advocacy " or "non-advocacy," but on whether the action required by the agency is a routine, ministerial function leaving the agency with no discretion to take any action which might benefit your client. If there is no discretion left in the agency, then the action is permitted; if not, then it is prohibited.