CEO 77-168 -- November 10, 1977
APPLICABILITY OF s. 8(e), ART. II OF FLORIDA CONSTITUTION TO LEGISLATOR-LAWYER REPRESENTATION OF A CLIENT IN ENVIRONMENTAL LITIGATION UNDER ENVIRONMENTAL PROTECTION ACT
To: Tom R. Moore, Representative, 55th District, Clearwater
Section 8(e), Art. II, State Const., provides, in part, that "[n]o member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. . . ." A state representative who, privately as an attorney, represents a client in environmental litigation under the Florida Environmental Protection Act is required by that act to notify the Department of Environmental Regulation of his private client's intention to file suit. He therefore questions whether his participation in subsequent communications with the staff of that agency constitutes the personal representation of another person or entity before a state agency.
The purpose of s. 8(e), Art. II, appears to be to secure the public trust against abuse by prohibiting a legislator from using the influence of his office over state agencies in order to gain benefits for a private client. As discussions between a legislator and a state agency may result in the agency's making a decision beneficial to the legislator/attorney's client, it would appear to fall squarely within the constitutional prohibition. This view is in accord with the commonly accepted meaning of "represent" as well as with the definition of that term contained in s. 112.312(15), F. S. (1976 Supp.). Too, a broad interpretation of this prohibition is consistent with the post officeholding restriction which appears in the first sentence of s. 8(e), Art. II, the purpose of which is to prohibit a public officer from exploiting the special knowledge or influence gained from his office by lobbying for his personal profit after having left office. However, the legislator/attorney is not prohibited from representing a private client before a court of law; neither is he prohibited from having a partner, or counsel associated with him, represent his client in those instances before state agencies where he is prohibited from doing so.
To what extent does s. 8(e), Art. II of the Florida Constitution apply to a legislator who in his private capacity as an attorney represents a client in environmental litigation under the Florida Environmental Protection Act?
In your letter of inquiry you advise that you are a member of the Florida House of Representatives and also an attorney who practices in the area of environmental law.
The Environmental Protection Act of 1971 provides in part as follows:
(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:
1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;
2. Any person, natural or corporate, governmental agency or authority to enjoin such persons, agencies, or authorities from violating any laws, rules or regulations for the protection of the air, water, and other natural resources of the state.
(b) In any suit under paragraph (a), the Department of Legal Affairs may intervene to represent the interests of the state.
(c) As a condition precedent to the institution of an action pursuant to paragraph (a), the complaining party shall first file with the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct complained of a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected. Upon receipt of a complaint, the governmental agency or authority shall forthwith transmit, by registered or certified mail, a copy of such complaint to those parties charged with violating the laws, rules, and regulations for the protection of the air, water and other natural resources of the state. The agency receiving such complaint shall have 30 days after the receipt thereof within which to take appropriate action. If such action is not taken within the time prescribed, the complaining party may institute the judicial proceedings authorized in paragraph (a). However, failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the conduct or activity complained of.
(d) In any action instituted pursuant to paragraph (a), the court, in the interest of justice, may add as party defendant any governmental agency or authority charged with the duty of enforcing the applicable laws, rules, and regulations for the protection of the air, water and other natural resources of the state. [Fla. Stat. s. 403.312(2)(1975).]
Thus, the act allows a private citizen to bring suit for an injunction against a private party to halt violations of the environmental laws. However, before such a suit may be filed in court, the act requires that notice must be given to the governmental agencies or authorities charged by law with the duty of regulating or prohibiting the act or conduct which forms the basis of the complaint. A copy of this notice is sent to the alleged violator by the agency, and the agency is given 30 days within which to take appropriate action. If no such action is taken by the agency within that time period, the complaining citizen may file the suit. Section 403.412(2)(c), quoted above.
The Sunshine Amendment, s. 8, Art. II of the Florida Constitution, provides in subsection (e) as follows:
No 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. No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by laws. [Emphasis supplied.]
The question you present is whether your notifying a state agency of a private client's intention to file suit under the Environmental Protection Act and your participation in subsequent communications with the staff of that agency constitute the personal representation of another person or entity before a state agency.
At the outset we note that your question does not relate to the propriety of inquiries made by a legislator in behalf of a constituent, as such are not undertaken for compensation. Nor does your question relate to representation of a client before a judicial tribunal, permitted under the amendment, because your question concerns circumstances occurring before any pleading is filed in court.
As s. 8(e), Art. II, has not been interpreted previously, we must turn to the courts for guidance.
The fundamental object in construing a constitutional provision is to ascertain and give effect to the intentions of the framers and adopters, and constitutional provisions must be interpreted in such a manner as to fulfill this intention rather than to defeat it. State ex rel. West v. Gray, 74 So.2d 114 (Fla. 1954). In construing particular constitutional provisions, the object sought to be accomplished and the evils sought to be remedied should be kept in mind by the courts, and the provisions should be so interpreted as to accomplish, rather than to defeat such objects. State ex rel. West v. Gray, supra; Owens v. Fosdick, 153 Fla. 17, 13 So.2d 700 (Fla. 1943). [State ex rel. Dade County v. Dickinson, 230 So.2d 130, 135 (Fla. 1969).]
Accordingly, we must first ascertain the intent behind this constitutional provision. The preamble to s. 8, Art. II, is as follows:
A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. . . .
Reading this language in conjunction with subsection (e), the purpose of that subsection appears to be to secure the public trust against abuse by prohibiting a legislator from using the influence of his office over state agencies in order to gain benefits for a private client. However, this provision also operates to prohibit members of the Legislature from undertaking to represent clients in situations which would give the appearance of improper influence even in the absence of intentional efforts to misuse the power of legislative influence. This concern is reflected in various articles dealing with governmental ethics, excerpts from two of which are as follows:
State administrators are in many respects subject to the control of the legislature, which approves their budgets, including their salaries, and may change or limit their jurisdiction. These agencies are therefore susceptible to the wishes of a legislator seeking special treatment in his private capacity. Appearance by legislators before agencies of the government in behalf of private interests does not necessarily involve the use of undue influence, but these circumstances give an appearance malum in se which is almost as damaging to public confidence as an actual act of bad conduct. [State conflict of interest Laws: A Panacea for Better Government?, 16 DePaul L. Rev. 453,459 (1966).]
One of the more pressing and controversial conflict problems arises when a public official represents private interests before a government agency. The danger is that the official will be in a position to influence unduly or to bring pressure upon the agency in order to gain a favorable ruling or decision as, for example, when a member of the state road board goes before a county commission to obtain an exclusive right to community antenna service for one of two competing corporations. [Conflicts of Interest: A New Approach, 18 U. Fla. L. Rev. 675,683 (1966).]
As you recognize in your letter of inquiry, litigation by a citizen under the Environmental Protection Act will result as a matter of course in discussions between the citizen's attorney and the staff of the affected agency, as a result of which the agency will decide what action it will take, if any. These discussions may result in the agency's deciding to pursue an alleged violator of environmental laws. This, in turn, would result in substantial benefit to the attorney's client, who is relieved of the expense of a lawsuit. This situation presents the opportunity for a legislator/attorney to misuse the influence of his public office and also can present the appearance of improper influence even where none is attempted, especially where the agency's decision is favorable to the client. Therefore, the situation you have described seems to fall squarely within the intent behind the constitutional prohibition.
It has been stated that, because the primary purpose of the rules of constitutional interpretation is to ascertain the intention of the people adopting a particular provision, it is presumed that words appearing in the Constitution have been used according to their natural and popular meaning as usually understood by the people who have adopted them. Therefore, the words in a Constitution should be construed in their plain, ordinary, and commonly accepted meaning unless the text suggests that they have been used in a technical sense. 6 Fla. Jur. Constitutional Law s. 26 (1963), citing, among others, State ex rel. West v. Butler, 69 So. 216 (Fla. 1914), and Wilson v. Crews, 34 So.2d 114 (Fla. 1948). In this regard we note that Webster's New Collegiate Dictionary (1973) defines "represent" as "to take the place of in some respect" or "to act in the place of or for usu. by legal right." Similarly, Black's Law Dictionary (4th ed., 1957) defines "to represent" as "to stand in his place; to supply his place; to act as his substitute." Therefore, a legislator who is acting in behalf of his client in contacting a state agency would be representing that client in a matter before that agency as the term "represent" seems to be commonly understood.
In addition, "represent" is defined in the Code of Ethics for Public Officers and Employees 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. [Section 112.312(15), F. S. (1976 Supp.).]
This broad definition of "represent," which encompasses all contact with an agency in behalf of a client, is consistent with the scope given to that term by other states. For example, Texas law provides as follows:
No member of the legislature shall, for compensation, represent another person before a state agency in the executive branch of state government unless:
(1) The representation is made in a proceeding that is adversary in nature or other public hearing which is a matter of record; or
(2) The representation involves the filing of documents, contacts with such agency, or other relations, which involve only ministerial acts on the part of the commission, agency, board, department, or officer. [Tex. Rev. Civ. Stat. Ann., Art. 6252-9b, Section 7(a) (1977 Supp.).]
Thus, in Texas, a representation before a state agency would seem to include filing documents or making other contacts with the agency in regard to merely ministerial acts of the agency, although such forms of representation are expressly exempted from the prohibition.
In interpreting this constitutional prohibition, we note that omissions from constitutional provisions should be presumed to have been intentional. In re Advisory Opinion to the Governor, 112 So.2d 843 (Fla. 1959). Thus, we are not free to make distinctions between representations in ministerial matters or representations in matters collateral to a civil action where such distinctions do not appear in the constitutional provision.
Too, a broad interpretation of this prohibition is consistent with the post officeholding restriction which appears in the first sentence of s. 8(e), Art. II, the purpose of which is to prohibit a public officer from exploiting the special knowledge or influence gained from his office by lobbying for his personal profit after having left office. See 18 U. Fla. L. Rev. 675, supra.
In this regard, we take note that lobbying is not done solely in formal proceedings, such as committee hearings, but also takes place in less formal contact with the officers and employees of an agency through letters, telephone calls, and meetings. Were we to read "represent before an agency" not to include such informal means of contact with an agency in behalf of a client for purposes of your question, we would be forced to read the identical language completely differently for purposes of the post officeholding restriction. Accordingly, until judicially clarified to the contrary, we are of the opinion that s. 8(e), Art. II of the Florida Constitution prohibits a legislator who in his private capacity as an attorney represents a client in environmental litigation under the Environmental Protection Act from filing a verified complaint noticing his intention to file suit under that act with a state agency, other than a judicial tribunal, and from discussing that complaint with any of the officers or employees of the agency. We reiterate that you are not prohibited from representing such client before a court of law, but only before state agencies other than judicial tribunals.
However, since constitutional omissions are presumed to be intentional and since the constitutional provision only prohibits "personally" representing a client, we find nothing in s. 8(e), Art. II, which would prohibit you from having a partner, or counsel associated with you, represent your client in those instances where you are prohibited from doing so. We would point out, however, that representations before a state agency by a partner or associate of your firm must be disclosed on a quarterly basis pursuant to s. 112.3145(4), F. S.