CEO 10-13 - April 21, 2010

POST-EMPLOYMENT RESTRICTIONS

FORMER SES SENIOR ATTORNEY OF AGENCY FOR WORKFORCE INNOVATION REPRESENTING CLIENTS IN UNEMPLOYMENT COMPENSATION MATTERS

To: Name withheld at the person's request (Tallahassee)

SUMMARY:

Advice is provided to a former SES employee of the Agency for Workforce Innovation (AWI) regarding the applicability and extent of the two-year, post-public-employment, representation restriction of Section 112.313(9)(a)4, Florida Statutes. CEO 06-1, CEO 05-1, CEO 04-16, CEO 03-10, CEO 02-12, and CEO 00-11 are referenced.1


QUESTION:


Are you, a former Selected Exempt Service (SES) employee of the Agency for Workforce Innovation (AWI) who served in the SES position for two and one half months, subject to the two-year, post-public-employment, representation restriction of Section 112.313(9)(a)4, Florida Statutes?


This question is answered in the affirmative.


By your letter of inquiry and additional information provided in response to questions from our staff, we are advised that you formerly were employed with the State's Agency for Workforce Innovation (AWI) from May 2009 until the end of July 2009, always serving in the Selected Exempt Service (SES), as defined in Section 110.602, Florida Statutes, as a Senior Attorney.


Section 112.313(9)(a)4, Florida Statutes, provides:

An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, may not 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.

 

For purposes of the prohibition, "employee" is defined in Section 112.313(9)(a)2.a.(I), Florida Statutes, to include


[a]ny 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.


We find that you are subject to the two-year restriction regarding representation before your former agency. Plainly, you were in a covered position (SES) when you were employed at AWI; thus, your situation is distinguishable from that presented in CEO 05-1. In CEO 05-1, the issue was whether a person formerly employed in a non-SES position had the "power normally conferred upon" a person in a covered (i.e., SES) position, such that the person would come within an alternative definition of "employee" codified in Section 112.313(9)(a)2.a(VI), Florida Statutes. That is, in your situation, because your employment status was that of an SES employee, there is no need to determine whether your position was equivalent to an SES position. Where a statute is plain and unambiguous, there is no occasion for judicial interpretation. See, among others, Golf Channel v. Jenkins, 752 So. 2d 561 (Fla. 2000).2 Further, in your situation, there is no argument that you were not "on notice," when you accepted your former SES employment, of the existence of the restriction, as compared to persons who became employed prior to adoption of the restriction in 1989 (via Chapter 89-380, Laws of Florida).


Accordingly, we find that you are subject to the restriction for a period of two years following your vacation of your SES position with your former public agency.


QUESTION 2:


What is the extent of your "agency" for purposes of the two-year restriction?


This question is answered as set forth below.


In addition to the information recited regarding Question 1 above, you advise that your only proposed post-public-employment representation would be before the Unemployment Appeals Commission (UAC) and "its lower tribunal," in matters where AWI is not a party. More particularly, you state that you are seeking to represent unemployment compensation applicants before the unemployment compensation appeals division of AWI (division), or before the UAC, and that the applicants typically are laid-off employees who are disputing a denial of unemployment compensation or who are being asked to pay back unemployment compensation funds.


Since the two-year provision does not restrict one's representation before all of the agencies of State government, but, rather, only applies to representation "before the agency with which [one] was employed [see CEO 00-11]," we must examine the structure of your former public employer (AWI) in order to determine the extent of the restriction's applicability to you. Regarding AWI, statutes provide:


There is created the Agency for Workforce Innovation within the Department of Management Services. The agency shall be a separate budget entity, as provided in the General Appropriations Act, and the director of the agency shall be the agency head for all purposes. The agency 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 20.50, Florida Statutes.] The agency shall include the following offices within its organizational structure: 1. The Office of Unemployment Compensation Services; 2. The Office of Workforce Program Support; 3. The Office of Early Learning . . . . 4.


The Office of Agency Support Services [Section 20.50(2)(c), Florida Statutes.] The Unemployment Appeals Commission, authorized by s. 443.012, is not subject to control, supervision, or direction by the Agency for Workforce Innovation in the performance of its powers and duties but shall receive any and all support and assistance from the agency that is required for the performance of its duties. [Section 20.50(2)(d), Florida Statutes.]


Based on the statutes, it is clear that UAC is a different "agency" from AWI (CEO 03-10), and, thus, that UAC was not your public employer.3 Therefore, we find that you are not prohibited from representing clients before UAC, per se. As to your representation of clients before the UAC's "lower tribunal," what you also refer to as the "unemployment compensation appeals division [of AWI]," we find that you are restricted for the two-year period. Unlike regarding UAC, we have discovered no statute separating the lower tribunal from AWI. Indeed, information on AWI's website (www.floridajobs.org) shows the lower tribunal to be a part of AWI:


The unemployment compensation program provides temporary benefits to qualified workers who are out of work through no fault of their own. When an unemployment compensation claim is filed, any issues are investigated to determine whether all requirements for payment are met and, if so, whether those payments will affect a former employer. A determination, including appeal rights and instructions, is mailed to all parties. An unfavorable determination can be appealed by the claimant or employer.


All appeals are reviewed to verify that each was filed by a person with the right to do so. Then a docket number is assigned. A hearing is scheduled. Each person who testifies is placed under oath (or affirmation) to tell the truth. The hearing is electronically recorded. A written decision is mailed to all parties. A party who is not satisfied with the result may request a review of the case by the Unemployment Appeals Commission (UAC). After reviewing the case record, including the electronic recording, the UAC will issue an Order that affirms, reverses, or modifies the hearing officer's decision or returns the case to the Office of Appeals for further action if a significant error occurred.


However, regarding UAC representation, as a practical matter, it may be difficult for you to represent clients without running afoul of the two-year restriction if your representation involves contact with AWI personnel who provide support or assistance to UAC. This is so because AWI personnel are personnel of your former public agency (AWI), because of the breadth of the definition of "represent" or "representation," 4 and because it does not matter that UAC, rather than AWI, is the decisionmaker (is the locus of authority to make decisions) regarding the UAC appeals. CEO 00-11, CEO 02-12 (Question IV), and CEO 06-1. Also, note that we find that the whole of AWI, not just a part of it, is your agency for purposes of the restriction. CEO 04-16.


Accordingly, we find that your "agency" for purposes of the restriction is the whole of AWI, and is not UAC, but that any conduct of yours within the meaning of "representation," vis--vis AWI or its personnel (even its personnel supporting UAC), is prohibited by the restriction.


ORDERED by the State of Florida Commission on Ethics meeting in public session on April 16, 2010 and RENDERED this 21st day of April, 2010.




__________________________

Roy Rogers

Chairman

[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.

[2] The version of Section 112.313(9)(a)2.a(VI) applicable to CEO 05-1, and the currently codified version, provide, respectively: Any person having the power normally conferred upon the positions referenced in this sub-subparagraph. Any person, including an other-personnel-services [OPS] employee, having the power normally conferred upon the positions referenced in this sub-subparagraph.

[3] There is created within the Agency for Workforce Innovation an Unemployment Appeals Commission. . . . [Section 443.012(1), Florida Statutes.] The commission has all authority, powers, duties, and responsibilities relating to unemployment compensation appeal proceedings under this chapter. [Section 443.012(3), Florida Statutes.] The property, personnel, and appropriations relating to the specific authority, powers, duties, and responsibilities of the commission shall be provided to the commission by the Agency for Workforce Innovation. [Section 443.012(4), Florida Statutes.]

The commission is not subject to control, supervision, or direction by the Agency for Workforce Innovation in performing its powers or duties under this chapter. [Section 443.012(5), Florida Statutes.]

4] "Represent" or "representation" is defined in Section 112.312(22), Florida Statutes, to mean 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."