CEO 93-14 -- June 11, 1993

CONFLICT OF INTEREST

FORMER DEPARTMENT OF ENVIRONMENTAL REGULATION

STAFF ATTORNEY REPRESENTING CLIENTS

BEFORE DEPARTMENT AND OTHER AGENCIES

To: Elizabeth G. Lowrey, Attorney at Law (West Palm Beach)

SUMMARY:

A former staff attorney of the Department of Environmental Regulation is prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally representing another person or entity for compensation before the Department (or before its successor, the Department of Environmental Protection, in matters concerning former DER personnel or matters) for a period of 2 years after leaving her public position. Her activities are restricted based upon whether or not they constitute "representation" and based upon whether or not the representation is "before the agency." Her representation in matters before courts or agencies other than the Department would not be prohibited. CEO's 92-3, 91-54, 91-49, 90-4, 84-6, and 77-168 are referenced.

QUESTION 1:

Does Section 112.313(9)(a)4, Florida Statutes, prohibit you, a former employee of the Office of General Counsel of the Florida Department of Environmental Regulation (Department), from participating in proceedings under Section 120.57(1), Florida Statutes, involving the Department of Environmental Regulation and other agencies or entities, on behalf of a client, by:

A. Filing a petition with the Department requesting formal hearing under Section 120.57(1), as a substantially affected party challenging an action taken by the Department, where the Department is responsible for issuing the final order in cases involving denial of a permit, license, or participation in some State program that the Department is charged with implementing, or in cases involving the issuance of a permit or license to a third party or allowing a third party to participate in a State program the Department is charged with implementing?

B. Engaging in the representation discussed in Question 1, A, where the Department is a party to the proceeding but is not the agency with which a petition must be filed and is not the agency responsible for issuing the final order?

C. Responding to a petition filed by a substantially affected third party challenging an action taken by the Department, such as where the Department has issued a permit or license to a client or allowed a client to participate in a State program the Department is charged with implementing, where the Department is the agency whose action is being challenged and the Department is the agency responsible for issuing a final order?

D. Engaging in the activity set forth under Question 1, C, where the Department is a party to the proceeding but is not the agency responsible for issuing a final order?

E. Submitting motions to the DOAH hearing officer for entry of an order on the motion, participating in oral hearing before the hearing officer on any motions, making discovery requests that may or may not be used as evidence in the proceedings, taking depositions that may or may not be used as evidence in the proceedings, performing direct and cross-examination of witnesses during the proceeding, and submitting proposed recommended orders to the hearing officer after the proceeding has concluded, regarding petitions referred to DOAH by the Department that were filed by or on behalf of a client or that were submitted by a third party?

F. Filing exceptions with the Department or presenting oral argument to the Secretary of the Department regarding the hearing officer's recommended order?

G. Taking an appeal to a District Court of Appeal challenging a final order of the Department?

Your inquiries are answered as set forth below.

By your letter of inquiry, we are advised that you currently are employed by a private law firm whose practice focuses on environmental and administrative law, that these areas of the law are your areas of professional interest and experience, and that as a result of the firm's practice you must deal with matters involving various governmental agencies, including the Florida Department of Environmental Regulation (DER). We are advised further that you were employed by the Department's Office of General Counsel as a staff attorney, classified under a select exempt status, beginning your employment on January 2, 1990. You recognize that you are not exempt from the provisions of Section 112.313(9)(a)4 by virtue of the "grandfather clause" of Section 112.313(9)(a)6, Florida Statutes.

In a proceeding under Section 120.57(1), you relate, a petition is filed with an agency (such as the Department) and reviewed by the agency for compliance with the requirements of Rule 28-5.201, Florida Administrative Code. If the agency determines that the petition meets the rule's requirements, the agency will refer the petition to the Division of Administrative Hearings (DOAH) for assignment of an "independent hearing officer" to conduct a formal administrative hearing, you relate. Once the agency refers the petition to DOAH, all motions, pleadings, or other papers are submitted by the parties to the hearing officer, who is "now responsible for issuing orders on such motions," you relate. The parties may request oral argument on the motions, but it is within the discretion of the hearing officer to allow such argument, you advise. In addition, you advise that during the hearing before the hearing officer, all parties have the opportunity to respond, to present evidence and argument on all issues involved, conduct cross-examination, and submit rebuttal evidence, and that upon completion of the presentation of evidence and the hearing, all parties have the opportunity to submit proposed recommended orders, which can include proposed findings of fact and conclusions of law, for the hearing officer's consideration. Once the parties have had an opportunity to submit proposed recommended orders, you relate, the hearing officer then submits to the agency and to all parties a recommended order consisting of findings of fact, conclusions of law, interpretation of administrative rules, and recommended action or penalty. At this point in the hearing process, "jurisdiction is returned to [the Department]," you advise, and the parties have an opportunity to file exceptions to the recommended order with the agency for consideration in issuing its final order. Further, you advise that the parties may also request oral argument before the agency head on the recommended order.

The Code of Ethics for Public Officers and Employees provides in relevant part:

No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government. [Section 112.313(9)(a)4, Florida Statutes.]

'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. [Section 112.312(22), Florida Statutes.]

As this "revolving door" prohibition applies only to situations where you "personally represent" a client, we note initially that it limits only your activities and not those of the other members of the law firm with which you are employed.

In your letter of inquiry, you suggest that this law should be interpreted to apply only to "high ranking" or "policy making or policy directing" positions. Having held a position in the Selected Exempt Service, you would come within the provision's definition of "employee." See Section 112.313(9)(a)2.a.(I), Florida Statutes, which defines this term to include, among executive branch personnel, persons holding positions in the Senior Management Service, in the Select Exempt Service, or in the Department of the Lottery with authority over policy or procurement. Thus, by not applying the statute to Career Service System employees, it appears that the Legislature intended to include only higher ranking employees within the scope of the two-year ban.

Of the several terms or elements contained in Section 112.313(9)(a)4, only two, "represent" and "before the agency with which he was employed," appear to be in need of discussion in providing answers to your inquiries. Your inquiries set forth under "A," "C," and "F" clearly constitute prohibited representation before your former agency. Thus, you are prohibited from acting on behalf of a client by filing a petition with the Department requesting a formal hearing under Section 120.57(1) in order to challenge an action taken by the Department, from responding to a petition filed by a substantially affected third party challenging an action taken by the Department, and from filing exceptions with the Department or presenting oral argument to the Secretary of the Department regarding the hearing officer's recommended order.

Under your inquiry labeled "B," while the filing of a petition with an agency other than DER in situations where DER would be a party to the proceeding clearly constitutes the "filing of documents on behalf of a client" within the definition of "represent," the filing would be with an agency other than your former agency, and the filing, per se, would not constitute "actual physical attendance on behalf of a client in an agency proceeding" or "personal communications made with the officers or employees of any agency on behalf of a client." See CEO 92-3. Therefore, we find that such filing, purely in and of itself, would not constitute "representation" for purposes of Section 112.313(9)(a)4.

In addition, since an agency other than DER would possess the jurisdiction to enter a final order under this scenario, we find that such a matter is not "before the agency" for purposes of Section 112.313(9)(a)4. In essence, your former agency has no proceedings before it which affect the client of its former employee; the proceedings are before a separate and distinct agency. Therefore, it is our view that you are free to engage in all aspects of proper legal representation of your client in the matter before the other agency, including written and oral communications with your former agency or with its personnel, which naturally are part of your provision of legal services in the matter before the other agency. Compare CEO 84-6.

Regarding inquiry "D," we find no prohibited conflict. In other words, you are not prohibited from responding on behalf of a client to a petition filed by a substantially affected third party challenging an action taken by an agency other than DER, even though the Department is a party to the other agency's proceeding. The filing would be with an agency other than your former agency and the filing, per se, would not constitute "actual physical attendance on behalf of a client in an agency proceeding" or "personal communications made with the officers or employees of any agency on behalf of a client." The filing, purely in and of itself, would not constitute "representation" within the meaning of Section 112.313(9)(a)4.

In addition, since it is our view that the matter would not be before your former agency, Section 112.313(9)(a)4 does not prohibit you from engaging in all proper aspects of representation of your client in the matter, as discussed in our response under Question 1, B.

Regarding inquiry "E," we find that your activities in representing the client at DOAH, as listed by you under this inquiry, would violate the provision in question because making discovery requests, taking depositions, examining witnesses, filing documents with the Department or Departmental personnel, or engaging in personal communications with personnel of the Department come within the meaning of "represent" for purposes of the provision in question. Written discovery requests (interrogatories, requests for production of documents, notices of taking deposition, etc.) sent under your signature to the Department or its personnel, or your questioning of Departmental personnel at hearings or depositions similarly would constitute such "representation." While we previously have not had occasion to issue an advisory opinion as to the application of Section 112.313(9)(a)4 in the context of matters involving DOAH under Section 120.57(1), our finding here is in accord with our recognition of the purposes of identical language, applicable to members of the Legislature under Article II, Section 8(e), Florida Constitution, to prevent the appearance of impropriety, to prohibit a public officer from exploiting the special knowledge or influence gained from his public position for private gain after leaving his public position, and to restrict interactions between a former legislator and his former colleagues. See CEO 77-168 and CEO 90-4, Question 2. As a former Department staff attorney, you would have been privy to such special knowledge and you would have been in a position to gain personal influence and affiliation with Departmental personnel, many of whom would, of course, still be acting for the Department in matters involving your private clients.

In our view, the prohibition against representing a client before one's former agency is intended to prohibit contacts with the agency, through any of the actions within the definition of "represent," on behalf of a client and with the intent of seeking to influence the agency's decision. We view such matters and your "representation" in them to be "before [your former] agency," even though your former agency would be utilizing the services (essentially fact-finding functions) of DOAH through a petition referral, since your former employer (DER) would be the agency with jurisdiction to enter the final order in such matters.

There would be no prohibited conflict in your taking an appeal to a District Court of Appeal from a final order of the Department (inquiry "G"), since an appeal would be before the court and not the Department.

QUESTION 2:

Are you prohibited by Section 112.313(9)(a)4 from engaging in the following activities under Section 120.57(2), Florida Statutes, involving the Department or other agencies or entities:

A. Filing a petition requesting a hearing before the Department challenging an action by the Department that adversely affects your client?

B. Representing a client in a proceeding before the Department initiated by a substantially affected third party challenging an action taken by the Department on behalf of a client (i.e. where the Department and a client are co-parties in a proceeding before the Department)?

C. Submitting written or oral evidence to the Department in opposition to or in support of action of the Department or in opposition to or in support of the Department's refusal to act?

D. Submitting a written statement to the Department challenging or supporting the grounds upon which the Department has chosen to justify its action or inaction?

We conclude that all of the activities described in this question are prohibited by Section 112.313(9)(a)4, Florida Statutes.

You relate that a Section 120.57(2) proceeding provides persons with an opportunity for an informal hearing where Section 120.57(1) does not apply and that this type of proceeding may be held before an agency. In this type of proceeding, you relate further, parties are allowed to present written or oral evidence in opposition to the action of the agency or in opposition to the agency's refusal to act, or to present a written statement to the agency challenging the ground upon which the agency has chosen to justify its action or inaction.

We find that filing a petition requesting an informal hearing before the Department challenging an action by the Department that adversely affects your client (inquiry "A") is prohibited inasmuch as the filing of a petition before the Department would constitute the filing of documents on behalf of a client.

We find the activity under "B," representing a client in an informal hearing proceeding before the Department that was initiated by a substantially affected third party, to be prohibited inasmuch as it would constitute actual physical attendance on behalf of a client in an agency proceeding and inasmuch as such representation could not occur without personal communications taking place between you and personnel of the Department. Further, assuming that a such a proceeding took place by telephone or other electronic communications media and assuming that such did not constitute your actual physical attendance in an agency proceeding, your participation still would be prohibited because it would necessitate personal communications on your part with personnel of the Department.

We find that the activity described in inquiry "C," involving the submission of written or oral evidence to the Department concerning the Department's action or inaction, would be prohibited because it would constitute the filing of documents with the Department on behalf of a client.

Finally, we find that submitting a written statement to the Department challenging or supporting the grounds upon which the Department has chosen to justify its decision (inquiry "D") is prohibited, as this act would entail the filing of documents with the Department on behalf of a client and, arguably, would constitute the writing of letters and personal communications.

You suggest that a fairer approach would be to limit your involvement to only matters where you were involved "personally and substantially" while a Department employee, which is one of the "revolving door" approaches taken by the Federal government. We are unable to interpret the law in this limited fashion, because, in our view, the Legislature made a policy decision to impose a two-year prohibition on contacting one's former agency in matters that are "before [your former] agency," regardless of whether the former employee participated in the same matter in her public capacity. Certainly, when the Legislature drafted this law it knew how to limit a post-employment prohibition to matters in which one "participated personally and substantially," having previously done so in Section 112.3185, Florida Statutes.

QUESTION 3:

Are you prohibited from engaging in the following activities under Sections 120.54(4), 120.54(5), and 120.56, Florida Statutes, involving the Department or other entities:

A. Filing a petition with DOAH requesting an administrative determination of the invalidity of a proposed rule or of an existing rule of the Department or of another agency where the Department is substantially affected and joins as either a party or as an intervenor?

B. Filing a petition with DOAH seeking to join as a party or intervenor in a Section 120.54(4) or Section 120.56 proceeding challenging an agency's proposed or existing rule, where the Department is the agency whose proposed or existing rule is challenged or where the Department is not the agency whose proposed or existing rule is challenged but where the Department is substantially affected and joins as a party or intervenor?

C. Engaging in all activities set forth in Question 1, E, as are applicable to proceedings under Section 120.54(4) and 120.56, such as filing motions with DOAH, participating as counsel in hearings before the hearing officer, taking depositions for use in the DOAH proceedings, and submitting proposed orders to the hearing officer?

D. Filing a petition with the Department under Section 120.54(5) requesting the Department to either adopt, amend, or repeal a rule?

E. Participating in any of these proceedings as an intervenor aligned with the Department's position or adverse to the Department's position?

You advise us further that in proceedings under Sections 120.54(4) or 120.56, Florida Statutes, a substantially affected person may seek an administrative determination of the invalidity of a proposed or existing rule by filing a petition with DOAH. It is DOAH's responsibility to forward copies of the petition to the agency whose rule is being challenged and to determine the sufficiency of the petition. You advise that hearings held under either of these provisions are conducted in the same manner as provided in a Section 120.57(1) proceeding except that the hearing officer's order constitutes final agency action. In these proceedings, the agency and the person requesting the hearing are adverse parties; however, other substantially affected persons may join the proceedings as parties or as petitioner intervenors or respondent intervenors, you relate.

In Section 120.54(5) proceedings, any person regulated by an agency or having a substantial interest in an agency rule may petition an agency to adopt, amend, or otherwise repeal a rule, you relate, and the agency is required to initiate rule-making, otherwise comply with the requested action, or deny the petition with a written statement of its reasons for the denial.

We find that filing a petition with DOAH requesting an administrative determination of the invalidity of a proposed or existing rule of the Department or of another agency (the activity described in inquiry "A") would not be prohibited inasmuch as the filing would be with DOAH, an agency distinct from your former employer. Further, since DOAH and not your former agency would possess the jurisdiction to enter the final order in the matter, the representation you would engage in would not be "before [your former] agency" and, thus, you would not be prohibited from engaging in communications and activities on behalf of your client as discussed under our response to Questions 1, B and 1, D.

We find that filing a petition with DOAH seeking to join as a party or intervenor in a proceeding challenging an agency's proposed or existing rule, whether a rule of the Department or of another agency (inquiry "B"), and necessary attendant representation, would not be prohibited, based upon the reasoning in our response to inquiry "A."

We find the activities under "C" (submitting motions to the DOAH hearing officer for entry of an order, participating in oral hearing before the hearing officer, etc.--the activities set out in Question 1, E) not to be limited by Section 112.313(9)(a)4 because, unlike the Section 120.57(1) matters applicable to Question 1, E, in Section 120.54(4) and Section 120.56 matters, the DOAH hearing officer and not your former agency would have jurisdiction to enter the final order in the matter relating to the "representation." Thus, the "representation" would not be "before [your former] agency" for purposes of the prohibition. In essence, to be prohibited, the activity must come within the definition of "represent" and the "representation" must be "before [your former] agency."

We find your filing of a petition with the Department requesting the Department to either adopt, amend, or repeal a rule (inquiry "D") to be prohibited because the filing of the petition would be with the Department.

As to "E," the question of whether you may participate in any of the rule challenge or rule adoption proceedings as an intervenor aligned with the Department's position or adverse to the Department's position, the focus of the law is not on whether your client would be an intervenor opposed to or aligned with the Department, but rather on whether you would be engaged in the prohibited activities as discussed above or whether the proceeding would be "before [your former] agency." Therefore, our responses above should answer this inquiry.

QUESTION 4:

Are you prohibited from engaging in the following activities under Section 403.412, Florida Statutes, involving the Department or other agencies or entities:

A. Filing a verified complaint with the Department seeking to compel the Department to enforce laws, rules, or regulations or seeking to enjoin the Department from violating laws, rules, or regulations?

B. Filing a verified complaint, as described in Question 4, A, where the agency filed with is not the Department but where the Department is a party?

C. Representing a client in a proceeding in Circuit Court in which the Department is a party?

D. Representing a client in an appeal to a District Court of Appeal where the Department is a party?

You relate that in a proceeding instituted under Section 403.412, Florida Statutes, any political subdivision or municipality of the State, or a citizen of the State, may maintain an action for injunctive relief against any governmental agency charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air and water of the State, to compel such governmental authority to enforce such laws, rules, or regulations, or to enjoin such authorities from violating any laws, rules, or regulations. In addition, you relate that before such a proceeding may be instituted, the complaining party must first file with the agency or authority a verified complaint setting forth the facts upon which the complaint is based, that the agency has 30 days in which to take appropriate action, and that if such action is not taken by the agency, then the complaining party may institute judicial proceedings.

In our view, the activity listed in "A" would be prohibited. Filing of a "verified complaint" with the Department would constitute the filing of documents with the Department on behalf of a client, and, in terms of jurisdiction to take final action, the matter would be "before [your former] agency."

The activity listed in "B," filing a verified complaint with an agency other than the Department but where the Department is a party, would not be prohibited because the filing would not be with your former agency. Further, as discussed under various responses above, we do not view the proceedings to be before your former agency because your former agency will not be taking the final action in the matter, and, thus, necessary attendant representation is permissible.

Regarding "C," representation of a client in a Circuit Court proceeding in which the Department is a party, and any attendant representation, would not be prohibited.

Regarding "D," representing a client in an appeal to a District Court of Appeal where the Department would be a party, your representation would not be prohibited.

QUESTION 5:

Are you prohibited from personally participating in administrative proceedings and non-litigated matters before the various water management districts in the State and before local agencies?

We find that such participation is not prohibited. This finding is not dependent on whether water management districts are State-level bodies of government or not, but rather is based upon their being agencies other than your former agency. See CEO 91-49, Question 3. Thus, as discussed above, the representation would not be "before [your former] agency."

Inasmuch as many activities within the definition of "represent," as discussed under various questions herein, would be prohibited by Section 112.313(9)(a)4 had the matter the representation concerned not been found by us to be before an agency other than your former agency (DER) or its successor (DEP), we want to emphasize that a matter is not before one of these other agencies until a pleading or other document invoking the jurisdiction of the agency is filed. Basically, we find that Section 112.313(9)(a)4 prohibits your personally engaging in activities within the definition of "represent" when the representation is "before [your former] agency," and we also find that the activities within the definition of "represent" are "before [your former] agency" unless they are clearly before another substantively distinct agency (before a court by virtue of the filing of a complaint, petition, or other pleading invoking the jurisdiction of the court, or similarly placed before another agency in a matter in which that agency has final order authority).

QUESTION 6:

In view of the enactment of Chapter 93-213, Laws of Florida (Florida Environmental Reorganization Act of 1993), what activities discussed in Questions 1 through 4 above, if any, would be prohibited by Section 112.313(9)(a)4, Florida Statutes?

Since your initial inquiry, you have advised that the Legislature adopted Chapter 93-213, Laws of Florida, known as the Florida Environmental Reorganization Act of 1993. The title of the Act provides in part:

. . . . creating the Department of Environmental Protection and transferring the Department of Natural Resources and the Department of Environmental Regulation to such department. . . . transferring the Department of Natural Resources, the Department of Environmental Regulation, including the Environmental Regulation Commission[,] to the new department. . . .

The Act itself provides in part:

All of the existing legal authorities and actions of the Department of Environmental Regulation and the Department of Natural Resources are transferred to the Department of Environmental Protection, including, but not limited to, all pending and completed actions on orders and rules, all enforcement matters, and all delegations, interagency agreements, and contracts with federal, state, regional, and local governments, and private entities. [Chapter 93-213, Section 3(3), Laws of Florida.]

The Department of Environmental Regulation is transferred to the Department of Environmental Protection by a type three transfer, as defined in s. 20.06(3), Florida Statutes, except that the Division of Waste Management, the Division of Water Management, the Division of Water Facilities, the Division of Air Resources Management, the Division of Administrative Services, and the Division of Technical Services of the Department of Environmental Regulation are assigned intact to the respective division of the same name in the Department of Environmental Protection by a type four transfer, as defined in s. 20.06(4), Florida Statutes. The Environmental Regulation Commission and the district offices of the Department of Environmental Regulation are transferred intact to the Department of Environmental Protection by a type four transfer, as defined in s. 20.06(4), Florida Statutes. The Environmental Regulatory Commission shall be vested with the same standard-setting authority as existed on or before the effective date of this act. [Chapter 93-213, Section 8(2), Laws of Florida.]

Sections 20.06(3) and 20.06(4), Florida Statutes, provide respectively:

(3) TYPE THREE TRANSFER.--A type three transfer is the merging into a department of an existing agency or, if elsewhere in this chapter certain identifiable programs, activities, or functions have been removed from an existing agency, it is the merging into a department of the existing agency with the certain identifiable programs, activities, or functions removed therefrom. Any agency transferred by a type three transfer shall have all its statutory powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, except those transferred elsewhere by other provisions of this chapter, transferred to the department to which it is transferred. The transfer of segregated funds shall be made in such manner that the relation between program and revenue source as provided by law is retained. If an agency transferred by a type three transfer was headed by a board, however designated, all of the board's statutory powers, duties and functions, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds, except those transferred elsewhere by other provisions of this chapter, are transferred to the department to which the agency is transferred, and the board is abolished.

(4) TYPE FOUR TRANSFER.--A type four transfer is the merging of an identifiable program, activity, or function of an existing agency into a department. Any program or activity transferred by a type four transfer shall have all its statutory powers, duties, records, personnel, property, and unexpended balances of appropriations, allocations, or other funds transferred to the department to which it is transferred. The transfer of segregated funds shall be made in such manner that the relation between program and revenue source as provided by law is retained.

It is our view that Section 112.313(9)(a)4 applies as set forth under our responses to Questions 1 through 4 above when the "representation" is directed to personnel of the new department who were formerly personnel of DER or when the "representation" concerns programs, activities, functions, powers, or duties of the former agency (DER). To adhere to a contrary view, particularly in light of the language of the Act and of Sections 20.06(3) and 20.06(4) would yield an absurd result which would remove the prohibition in situations in which only the form, and not the substance, of the governmental entity and its personnel has changed.

QUESTION 7:

Does Section 112.313(9)(a)4, Florida Statutes, prohibit your representing various governmental entities before DER (now DEP) in the capacities described and discussed in Questions 1 through 4 above, in view of the last clause of Section 112.313(9)(a)4, Florida Statutes?

By your supplemental letter of inquiry mentioned above and by telephone conversation between you and our staff, we are advised that your firm has been retained by and represents various governmental entities for which it has appeared before DER and DNR (which are now embodied in DEP), including water control districts, county governments, city governments, special districts, and water management districts. You question whether you may personally engage in such representation before DEP based upon the language of the last clause of Section 112.313(9)(a)4: "unless employed by another agency of state government." In order for that clause to be effective (assuming, arguendo, that your firm's retention by the governmental entities constitutes your "employment by an agency" within the meaning of the clause), the agency must be a State-level agency. The governmental entities mentioned in your inquiry are not State-level agencies. See, for example, CEO 91-54 and our opinions cited therein. Therefore, we find that the clause in question is not applicable to the scenario underlying your inquiry.

Your questions are answered accordingly.