FORMER COUNTY COMMISSION MEMBER REPRESENTING CLIENTS BEFORE COUNTY BOARDS AND STAFF
To: Mark Herron, Attorney (Tallahassee)
No prohibited conflict of interest would be created under Section 112.313(14), Florida Statutes, were a former member of a Board of County Commissioners to represent clients for compensation before the County Planning and Zoning Board, the Board of Adjustments, or the County Planning, Zoning and Development Division within two years of leaving office. A conflict would be created were the former member to represent clients for compensation before members of the County Commission either sitting as a board or individually, or before aides to the Commission members.
Would Section 112.313(14), Florida Statutes, be violated were a former member of the Santa Rosa Board of County Commissioners to represent clients before the County Planning and Zoning Board or Board of Adjustments, or the County Planning, Zoning and Development Division, but not before the County Commission or individual Commissioners or their aides?
Your question is answered in the negative.
By letter of inquiry and additional materials supplied to this office and conversations with staff, we are advised that W.A. "Buck" Lee served on the Santa Rosa County Commission until his term expired in November 2004. He owns a consulting business and would like to represent or assist individuals in planning and permitting activities and wishes to know whether such representation would violate the post-officeholding restriction of the Code of Ethics for Public Officers and Employees. He plans to represent clients before the Planning and Zoning Board, the Board of Adjustments, and the staff of the County Planning, Zoning and Development Division, but does not intend to represent persons before the County Commission sitting as a board or before individual members of the commission or their aides.
The former Commissioner anticipates that about 90 percent of his consulting work will involve applications for zoning changes. Such applications are initially submitted to the Planning, Zoning and Development Division, which serves as staff to both the Planning and Zoning Board and the Board of Adjustments. The Director of the Division is appointed by the County Administrator and advises both Boards. The Planning and Zoning Board is a ten member body whose members are appointed by the County Commission. When a zoning change is requested, the Division provides a report to the Planning and Zoning Board commenting on the proposed change. In addition, according to the County Land Development Code, the Board must "hear and evaluate comments from the County Planning and Zoning Division and such other departments as may be pertinent."
The former Commissioner contemplates that he would appear before staff of the Division and before the Planning and Zoning Board itself. The Board's decision automatically is reviewed by the County Commission, but he states that he would retain another person to appear before that body. The Board of Adjustments is a five member body also appointed by the County Commission. The former Commissioner's appointee still serves on this Board. The Board hears requests for variances from the County Land Development Code, and its decisions are final unless appealed to the County Commission. Again, the former Commissioner anticipates dealing with staff of the Division and appearing when necessary before the Board, but not before the County Commission or any member thereof or his or her aide.
Section 112.313(14), Florida Statutes, provides:
LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION. -- A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the governing body of which the person was an officer for a period of 2 years after vacating that office.
As a former elected member of the Santa Rosa County Commission, the former Commissioner is prohibited from representing clients before Santa Rosa's governing body for two years after leaving office. "Representation" is defined as "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. The definition is very broad and includes making inquiries of staff (CEO 01-3) and attendance at a meeting to observe the proceedings. CEO 92-3. All of the contacts described above, including the filing of the application, would constitute representation under this definition. However, it does not appear that either the Planning and Zoning Board, the Board of Adjustment, or the staff of the Planning, Zoning and Development Division are either the "governing body" or part of the "governing body" of which the former Commissioner was an officer.
We have not had occasion to consider the parameters of Section 112.313(14) in the context of an opinion, although we have had addressed the extent of other post-employment and post-officeholding restrictions. In CEO 92-3, we dealt with the restriction found in Article II, Section 8(e), Florida Constitution and Section 112.313(9)(a)3, Florida Statutes, which provides that "[n]o member of the legislature 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 two years following vacation of office." There, we found that the provision prohibited a former legislator not only from appearing before the Legislature, but also from asking informational questions of staff and attending committee meetings within two years of vacation of office. In CEO 02-12, we found that an attorney employed in the Practitioner Regulation Section of the General Counsel's Office of the Agency for Health Care Administration (AHCA) was prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing clients not only before that division but also before any other division of AHCA and before personnel transferred from AHCA to the Department of Health as part of an anticipated transfer of the practitioner regulation component. Similarly, in CEO 04-16, we advised an individual formerly employed in District 1 of the Department of Transportation that he was prohibited from representing clients before the entire Department for two years after leaving employment.
As is clear from the foregoing, we have taken a broad view of the post-employment and post- officeholding limitations. This is in part because the purpose of the "revolving door" prohibitions is to prevent the appearance of impropriety by preventing public officials from exploiting the special knowledge or influence gained from their public position for private gain after leaving that position, and to restrict interactions between a former officer or employee and his or her former colleagues. See, CEO 95-14, CEO 93-14, and CEO 02-12. Nevertheless, we recognize that the various sections dealing with post employment or officeholding restrictions use slightly different language. Section 112.313(14) uses the term "governing body," while Article II, Section 8 and Section 112.313(9)(a)3 use the phrase "government body or agency," and Section 112.313(9)(a)4 (the provision applicable to state employees) uses the term "agency by which he or she was employed." By using a different and more limited terminology, it would appear that the legislature intended the post-officeholding prohibition applicable to elected county, municipal, special district, or school district officers to be less restrictive than the prohibitions applicable to other officers and employees.
We do not go so far as to adopt the position that the prohibition is limited to appearances before the County Commission sitting as a board. Such an interpretation would render the statute a nullity, as it would have the absurd effect of prohibiting former officials from representing clients in a public meeting of the body on which they served, while allowing them to meet privately, one-on-one and behind the scenes, with the very same persons or, in what would amount to almost the same thing, their aides. Construction of a statute which would lead to an absurd result should be avoided. McKibben v. Mallory, 293 So.2d 48, 51 (Fla. 1974).
Accordingly, we find Section 112.313(14), Florida Statutes, would prohibit a former member of the Santa Rosa County Commission from representing clients for compensation before members of the County Commission either sitting as a board or individually, or before aides to the Commission members, but would not prohibit him from representing clients before the Planning and Zoning Board, the Board of Adjustments, or the County Planning, Zoning and Development Division.
ORDERED by the State of Florida Commission on Ethics meeting in public session on April 21, 2005 and RENDERED this 26th day of April, 2005.
Joel K. Gustafson, Chair