CEO 95-32 -- October 13, 1995

POST-OFFICEHOLDING RESTRICTIONS

APPLICABILITY OF TWO-YEAR "REVOLVING DOOR" RESTRICTION

TO SUBSTITUTE P.E.R.C. COMMISSIONER

To: Ms. Patricia A. Renovitch (Tallahassee)

SUMMARY:

A substitute P.E.R.C. Commissioner appointed pursuant to Section 120.71, Florida Statutes, to participate in a single proceeding is not an "appointed state officer" for purposes of the post-officeholding restriction contained in Section 112.313(9)(a)3, Florida Statutes.

QUESTION:

Where you are appointed as a substitute member of the Public Employees Relations Commission due to the disqualification of a commissioner pursuant to Section 120.71, Florida Statutes, would you subsequently be precluded from representing clients before P.E.R.C. for a period of two years, as provided in Section 112.313(9)(a)3, Florida Statutes?

Your question is answered in the negative, under the circumstances presented.

We are advised that the Public Employees Relations Commission (P.E.R.C.) is a quasi-judicial body which decides a variety of employment disputes, including State career service appeals. It is composed of three full-time appointees who serve overlapping four-year terms. Presently pending before P.E.R.C. is a career service appeal in which one of the P.E.R.C. Commissioners has declined to participate because she was Secretary of the State agency from which the appeal originated. During deliberations involving this case, an impasse has developed between the two remaining Commissioners. Thus, pursuant to Section 120.71, Florida Statutes, a substitute appointment must be made by the Governor to decide the case and, we are advised, you are being considered for this appointment. However, in your private practice as a labor and employment law attorney you frequently represent clients before P.E.R.C., and you are concerned that by accepting this substitute appointment you would unwittingly trigger the "revolving door" prohibition contained in Section 112.313(9)(a)3, Florida Statutes, and thereafter be prohibited from representing clients before P.E.R.C. for two years.

The applicable statutory language is as follows:

POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--

(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.

2. As used in this paragraph: . . .

b. "Appointed state officer" means any member of an appointive board, commission, council, or authority of the executive or legislative branch of state government whose powers, jurisdiction, and authority are not solely advisory and include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relative to its internal operations. . . .

3. No member of the Legislature, appointed state officer, 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 2 years following vacation of office. No member of the Legislature shall personally represent another person or entity for compensation during his term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit. . . .

5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct. . . .

6. This paragraph is not applicable to: . . .

e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995.

This statute prohibits statewide appointed officers from personally representing another person or entity for compensation before the agency of which the officer was a member for two years after leaving public office. The issue you have asked us to address is whether a substitute P.E.R.C. Commissioner appointed pursuant to Section 120.71, Florida Statutes, is an "appointed state officer" for purposes of Section 112.313(9)(a)3.

The pertinent part of Section 120.71(1), Florida Statutes, provides:

Notwithstanding the provisions of s. 112.3143, any individual serving alone or with others as an agency head may be disqualified from serving in an agency proceeding for bias, prejudice, or interest when any party to the agency proceeding shows just cause by a suggestion filed within a reasonable period of time prior to the agency proceeding. If the disqualified individual holds his position by appointment, the appointing power may appoint a substitute to serve in the matter from which the individual is disqualified.

Generally, the term "office" embraces the idea of tenure, duration, emolument, and duties, and pertains to a permanent public trust to be exercised in behalf of government. All of these elements taken together constitute a public office. See 9 Fla Jur 2d, Civil Servants, Section 2. It is an essential element of a public office that the duties thereof are continuing and permanent in their nature, and not occasional or intermittent. 9 Fla Jur 2d, Civil Servants, Section 4. Here, where substitute appointees do not hold an office for any duration or term, but sit to decide one case only, an essential element is lacking for determining that the substitute appointee holds a "public office."

Further, in AGO 73-218, the Attorney General opined that persons appointed as substitute members of boards and commissions under the predecessor to Section 120.71 did not require Senate confirmation, notwithstanding whether the regular members of those same boards and commissions required confirmation by the Senate. AGO 73-218 stated:

It is not reasonable to conclude that the legislature intended that, if a substitute must be made during a time when the Senate is in session, the Senate is required to interrupt its work on important legislative matters to confirm the designation of a substitute to serve in 'a particular investigation, inquiry, hearing, trial, appeal, matter or thing' that may last as little as one hour or one day.

Since substitute appointees serve for a limited period, in a limited capacity, we opine that it is not reasonable to conclude that a substitute P.E.R.C. Commissioner is an "appointed state officer" for purposes of the post‑officeholding restrictions contained in Section 112.313(9), Florida Statutes. In an opinion involving financial disclosure, CEO 80-85, we opined that alternate directors of the Florida Municipal Power Agency were not "local officers" required to file financial disclosure, where those alternate directors were temporary substitutes who were "filling-in" for regular members of the agency and were not considered to be members of its board of directors. Similarly, we find that you would not be subject to the two-year "revolving door" prohibition against representing clients before P.E.R.C. were you to accept appointment as a substitute P.E.R.C. Commissioner pursuant to Section 120.71, Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on October 12, 1995, and RENDERED this 13th day of October, 1995.

__________________________

William J. Rish

Chairman