CEO 03-10 -- August 20, 2003

 

POST-EMPLOYMENT RESTRICTIONS

 

FORMER DIRECTOR OF LEGISLATIVE AFFAIRS FOR THE DEPARTMENT OF MANAGEMENT SERVICES REPRESENTING CLIENTS BEFORE CERTAIN AGENCIES WITHIN THE DEPARTMENT

 

To: Name withheld at person's request

 

SUMMARY:

 

Section 112.313(9)(a)4, Florida Statutes, which prohibits specified state agency "employees" from representing clients for compensation before their former agency for two years following vacation of position, would not be violated where the former Director of Legislative Affairs for the Department of Management Services represents clients before certain agencies within the Department of Management Services. The former employee's duties did not extend to those agencies during his employment with the Department so he is not now in a position to benefit from those contacts and associations he made through his former position. In addition, even though the so-called "dotted line" agencies are administratively assigned to the Department of Management Services, they operate independently of it and are not subject to its jurisdiction or control. Thus, Section 112.313(9)(a)4, Florida Statutes, would not prohibit the former Director of Legislative Affairs for the Department of Management Services from representing clients for compensation before the Correctional Privatization Commission, the Florida Commission on Human Relations, the Public Employees Relations Commission, the Division of Administrative Hearings, and the State Technology Office within two years of vacating his position with the Department of Management Services.


QUESTION:

 

Are you, the former Director of Legislative Affairs for the Department of Management Services, prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients for two years before certain agencies that were administratively assigned to the Department of Management Services?

Your question is answered negative.

 

In your letter of inquiry, you write that you were employed by the Department of Management Services (DMS) as the Director of Legislative Affairs, vacating that position in early 2003. You question whether the post-employment restriction in Section 112.313(9)(a)4, Florida Statutes, would be construed to prohibit you from representing clients before the following entities: the Correctional Privatization Commission (CPC), the Florida Commission on Human Relations (FCHR), the Public Employees Relations Commission (PERC), the Division of Administrative Hearings (DOAH), and the State Technology Office (STO). You refer to these entities as "dotted line" agencies, presumably because they do not report directly to the Secretary of the Department of Management Services but, instead, operate independently from it and are not accountable to it.

 

You write that in your former capacity as Director of Legislative Affairs, you served as a liaison between DMS and the Legislature. In cooperation with the Secretary of DMS, you were responsible for lobbying, technical assistance, and communications with the Legislature on the effects of proposed legislation on DMS. Additionally, you helped facilitate local constituent concerns and oversaw the implementation of legislation affecting DMS after enactment. You state that you had no responsibility for any of the legislative matters or issues facing the so-called "dotted line" agencies; you did not lobby on their behalf; you did not prepare their legislative agenda; and you had no control or supervisory authority for any legislative or other matters concerning them.

 

Section 112.313(9)(a), Florida Statutes, provides in relevant part:

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:

a.  "Employee" means:

(I)  Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.

. . .

c.  "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control.

. . .

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

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.

. . . .

 

Section 112.313(9)(a)4, Florida Statutes, prohibits a former agency "employee" as that term is defined at Section 112.313(9)(a)2.a., Florida Statutes, from representing another person or entity for compensation before the agency with which he was employed for a period of two years following vacation of his position.

You claim you were never "employed" by any of these so-called "dotted line" agencies and you question whether they would be considered part of your "agency" for purposes of Section 112.313(9)(a)4. You write that by law, each of these agencies is assigned to DMS for administrative purposes only and that the Department of Management Services is prohibited from exercising any control or supervision over them.

 

With regard to the Florida Commission on Human Relations, Section 760.04, Florida Statutes, provides:

Commission on Human Relations, assigned to Department of Management Services.The commission created by s. 760.03 is assigned to the Department of Management Services. The commission, in the performance of its duties pursuant to the Florida Civil Rights Act of 1992, shall not be subject to control, supervision, or direction by the Department of Management Services.

 

For the Correctional Privatization Commission, Section 957.03(6), Florida Statutes, provides:


SUPPORT BY DEPARTMENT OF MANAGEMENT SERVICES.The commission shall be a separate budget entity, and the executive director shall be its chief administrative officer. The Department of Management Services shall provide administrative support and service to the commission to the extent requested by the executive director. The commission and its staff are not subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not limited to, personnel, purchasing, and budgetary matters, except to the extent as provided in chapters 110, 216, 255, 282, and 287 for agencies of the executive branch. The executive director may designate a maximum of two policymaking or managerial positions as being exempt from the Career Service System. These two positions may be provided for as members of the Senior Management Service.

 

Concerning the Public Employees Relations Commission, Section 447.205(3), Florida Statutes, provides:

The commission, in the performance of its powers and duties under this part, shall not be subject to control, supervision, or direction by the Department of Management Services.

 

With regard to the Division of Administrative Hearings, Section 120.65(1), Florida Statutes, provides:

The Division of Administrative Hearings within the Department of Management Services shall be headed by a director who shall be appointed by the Administration Commission and confirmed by the Senate. The director, who shall also serve as the chief administrative law judge, and any deputy chief administrative law judge must possess the same minimum qualifications as the administrative law judges employed by the division. The Deputy Chief Judge of Compensation Claims must possess the minimum qualifications established in s. 440.45(2) and shall report to the director. The division shall be a separate budget entity, and the director shall be its agency head for all purposes. The Department of Management Services shall provide administrative support and service to the division to the extent requested by the director. The division shall not be subject to control, supervision, or direction by the Department of Management Services in any manner, including, but not limited to, personnel, purchasing, transactions involving real or personal property, and budgetary matters.

 

Section 282.102, Florida Statutes, contains the following language concerning the State Technology Office:

Creation of the State Technology Office; powers and duties.There is created a State Technology Office within the Department of Management Services. The office shall be a separate budget entity, and shall be headed by a Chief Information Officer who is appointed by the Governor and is in the Senior Management Service. The Chief Information Officer shall be an agency head for all purposes. The Department of Management Services shall provide administrative support and service to the office to the extent requested by the Chief Information Officer. The office may adopt policies and procedures regarding personnel, procurement, and transactions for State Technology Office personnel. . . . .

 

In construing Section 112.313(9)(a)4, Florida Statutes, we have often attempted to dissect the former employee's area of responsibility and delimit those areas to which his influence naturally extended, consistent with the understood objective of the revolving door prohibition. See CEO 00-15. Here, without deciding whether your former agency included these so-called "dotted line" agencies, it is clear that your responsibilities when you were employed by DMS did not include interacting with these entities and, but for their administrative placement under the DMS umbrella, they can hardly be considered a part of the Department of Management Services.

Moreover, in Agency for Health Care Administration v. Associated Industries of Florida, Inc., 678 So.2d 1239 (Fla. 1996), Associated Industries argued that AHCA was created in violation of Article IV, Section 6, Florida Constitution, because it resulted in the establishment of a twenty-sixth department. The Florida Supreme Court disagreed, noting that AHCA was created as an independent agency within the [then] Department of Professional Regulation, that its placement there was a prerogative of the Legislature, and that so long as that agency was functionally related to the department in which it was placed, the twenty-five agency limitation did not prevent the Legislature from placing an agency within a department even though the agency itself reported directly to the Governor. Id., at 1248.

 

Here, since the Supreme Court has recognized that independent agencies can be created and assigned to another agency for administrative purposes, we conclude that the so-called "dotted line" agencies that are housed within DMS but are not subject to its supervision or control would not be considered your former agency for purposes of Section 112.313(9)(a)4, Florida Statutes.

 

Accordingly, we find that Section 112.313(9)(a)4, Florida Statutes, would not prohibit you from representing clients for compensation before the Correctional Privatization Commission, the Florida Commission on Human Relations, the Public Employees Relations Commission, the Division of Administrative Hearings, and the State Technology Office within two years of vacating your position as Director of Legislative Affairs for the Department of Management Services.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2003 and RENDERED this 29th day of July, 2003.

 

________________________

Richard L. Spears, Chairman