CEO 95-31 -- October 13, 1995

POSTEMPLOYMENT RESTRICTIONS

APPLICABILITY OF TWO-YEAR "REVOLVING DOOR" RESTRICTION

TO EXECUTIVE DIRECTOR OF FLORIDA ADVISORY COUNCIL ON

INTERGOVERNMENTAL RELATIONS

To: Dr. Mary Kay Falconer, Executive Director (Tallahassee)

SUMMARY:

The executive director of the Advisory Council on Intergovernmental Relations generally would be prohibited from representing persons or entities for compensation before her "agency," the Council, not the entire Florida Legislature, for two years after leaving public employment, since that position is specifically designated in Section 112.313(9)(a)2,a,III, Florida Statutes, as being subject to the "revolving door" prohibition. However, under the specific factual circumstances presented, the executive director is "grandfathered-in" under the revolving door prohibition since she has been continuously employed by the Council since October 1984.

QUESTION:

Would you, the executive director of the Florida Advisory Council on Intergovernmental Relations, be prohibited from representing another person or entity before the Florida Legislature after vacating your present position with the Council?

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

In your letter requesting a formal opinion, you seek to ascertain the extent to which you would be prohibited from representing other persons or entities for compensation after you leave your current position of Executive Director of the Florida Advisory Council on Intergovernmental Relations (ACIR). It is our understanding that you have been continuously employed by ACIR since October 1984. In September 1990 you were appointed staff director, and that position was reclassified to executive director on November 1, 1994.

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 officials, and designated public employees.

2. As used in this paragraph:

a. "Employee" means: . . .

(III) The executive director of the Advisory Council on Intergovernmental Relations and the executive director and deputy executive director of the Commission on Ethics. . . .

4. 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. . . .

6. This paragraph is not applicable to:

a. A person employed by the Legislature or other agency prior to July 1, 1989;

b. A person who was employed by the Legislature on July 1, 1989, whether or not the person was a defined employee on July 1, 1989; . . . .

This statute specifically designates your position as one which is prohibited from personally representing another person or entity for compensation before your agency for two years after leaving public employment. The issue you have asked us to address is whether your "agency" is limited to the ACIR, or whether it extends to the entire Legislature.

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 numerous 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 her influence might reasonably be considered to extend. See CEO 91-49. The Council is considered to be a "legislative" branch agency, its personnel are governed by the same personnel rules as other legislative employees, and eight of its 17 members are legislators. Nevertheless, we do not conclude that the entire Legislature constitutes the "agency" of a Council employee. Our review of Section 163.701, et seq., Florida Statutes, leads us to the conclusion that the Council serves as an autonomous governmental entity that, consistent with its statutory mandate, develops and carries out its own projects and activities for fostering better intergovernmental relationships at all levels of government. Thus, we conclude that for purposes of the Code of Ethics and particularly Section 112.313(9)(a)4, Florida Statutes, the "agency" of an employee of the Advisory Council on Intergovernmental Relations is the Council. Its executive director therefore would be prohibited from representing another person or entity for compensation before the Council for a period of two years following vacation of position, unless she were "grandfathered-in" pursuant to Section 112.313(9)(a)6.

In your case, we conclude that you are, indeed, "grandfathered-in." In CEO 94-34, we opined that a senior attorney with the Agency for Health Care Administration was not subject to the "revolving door" prohibition since he had been continuously employed with the same agency or its predecessor since prior to July 1, 1989. We interpreted the 1994 amendments to Section 112.313(9)(a)6 to permit an employee who was not in a defined position on July 1, 1989 but who was otherwise employed by an agency on that date, to later accept a defined position with that agency after July 1, 1989 and continue to be exempt upon leaving the defined position. This is in contrast to the situation presented in CEO 94-20, where an analyst with a standing committee in the Senate had been employed in various positions in the legislative and executive branches of State government but had not attained a defined position with the Legislature prior to July 1, 1989. We opined there that, although she was exempt from the revolving door prohibition in her current status, were she to become a staff director to a legislative committee now she would lose her exempt status and thereafter be subject to the prohibition against representing clients before the Legislature for two years after leaving legislative employment. We refused to conclude that any public employment prior to July 1, 1989 amounted to a lifetime exemption from the post-employment restrictions of Section 112.313(9) and instead linked the exemption in Section 112.313(9)(a)6 to the employment that gives rise to the potential "revolving door" prohibition. Here, where you have been continuously employed by the Council since October 1984 and have, since that time, risen to the position of executive director, you did not lose your exempt status once you attained that position even though it occurred after July 1, 1989. However, we note that this interpretation is limited to the specific facts before us, and our conclusion could be affected by any change, however subtle, in the factual situation presented.

Accordingly, we find that you would not be subject to the two-year "revolving door" prohibition against representing clients before the Advisory Council on Intergovernmental Relations after you leave your current employment with the Council.

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