CEO 78-2 -- January 19, 1978

SECTION 8(e), ART. II, STATE CONST.

REPRESENTATION BY LEGISLATOR / ATTORNEY OF CLIENT IN FORMAL PROCEEDINGS CONDUCTED BY HEARING OFFICER PURSUANT TO CH. 120, F.S.

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

Prepared by: Phil Claypool

SUMMARY:

Section 8(e), Art. II of the Florida Constitution prohibits a member of the Legislature from personally representing a client during term of office before any state agency other than judicial tribunals. It is presumed that the framers of s. 8, Art. II, popularly known as the Sunshine Amendment, intended the phrase "judicial tribunal" to apply to a body or bodies in addition to the courts but not to include all state agencies exercising quasi-judicial powers. Apparently any agency which is a judicial tribunal must exercise power of more than a quasi-judicial nature but which falls short of the judicial power granted the courts. In Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla. 1978), the Supreme Court directly held that the Industrial Relations Commission (I.R.C.), although a part of the executive branch within the Department of Commerce, is a judicial tribunal functioning in a judicial capacity in its reviews of workmen's compensation appeals. This decision apparently was based in large part on a prior opinion, In re Florida Workmen's Compensation Rules of Procedures, 285 So.2d 601 (Fla. 1973), in which the Supreme Court approved rules of procedure submitted to it by the Industrial Relations Commission, finding workmen's compensation litigation to be more judicial than quasi- judicial. The court thus opined in Scholastic Systems that the I.R.C. provides the equivalent review of workmen's compensation litigation afforded by the District Courts of Appeal in other cases. The Ethics Commission is unable to perceive any analogy between the functions of the I.R.C., a judicial tribunal, and the functions of hearing officers under Ch. 120, the Administrative Procedure Act. Judicial review in workmen's compensation proceedings is provided by the I.R.C.; judicial review of administrative matters, under the terms of the A.P.A., is provided by the courts. Moreover, under the A.P.A. a hearing officer provides only a recommended order, with the final order and proper exercise of delegated power residing with the agency. The hearing officer does not determine issues of law and fact and has no authority to apply the sanctions of the law. See Scholastic Systems, 307 So.2d at 169-170.

Accordingly, unless judicially clarified to the contrary, a legislator's representation of a client for compensation in formal proceedings before a hearing officer pursuant to Ch. 120, F. S., does not constitute a representation before a judicial tribunal under s. 8(e), Art. II of the Florida Constitution and therefore is prohibited by that article. It is further noted that the primary issue for decision in the case of Myers v. Hawkins (Case No. 52,639) presently pending before the Supreme Court, is whether the Public Service Commission constitutes a "judicial tribunal" under s. 8, Art. II. Consequently, it is expected that the court's opinion will have a significant impact upon this opinion, which is strictly advisory in nature and lacks the binding effect of opinions relating to the Code of Ethics under s. 112.322(3)(b), F. S. 1975.

QUESTION:

Would my representation of a client for compensation in formal proceedings before a hearing officer pursuant to Ch. 120, F. S., constitute a representation before a judicial tribunal under s. 8(e), Art. II of the Florida Constitution?

Your question is answered in the negative.

Section 8(e), Art. II of the Florida Constitution provides:

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 law. [Emphasis supplied.]

Clearly, the courts of this state are judicial tribunals. With respect to the judicial power of the state, the Constitution provides as follows:

Courts. -- The judicial power shall be vested in a supreme court, district courts of appeal, circuit courts and county courts. No other courts may be established by the state, any political subdivision or any municipality. The legislature shall, by general law, divide the state into appellate court districts and judicial circuits following county lines. Commissions established by law, or administrative officers or bodies may be granted quasi-judicial power in matters connected with the functions of their offices. [Section 1, Art. V, State Const.]

The Supreme Court of Florida, in Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla. 1973), held that even though the county board of public instruction was acting in a quasi-judicial capacity when suspending a pupil, the board violated the Sunshine Law when it recessed to reach a decision in the matter. In that case, the court cited the following definition of "quasi- judicial":

A term applied to the action, discretion, etc., of public administrative officers, who are required to investigate facts, or ascertain the existence of facts, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature. Black's Law Dictionary (Fourth Edition, p. 1411).

The court then stated:

The characterization of a decisional-making process by a School Board as "quasi-judicial" does not make the body into a judicial body.

The Florida Supreme Court also has laid down guidelines for the interpretation of constitutional provisions.

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).]

We presume that the framers of the Sunshine Amendment used the phrase "judicial tribunal" purposefully. Had they intended to limit legislator representations before state agencies only to those courts specified in s. 1, Art. V, they could easily have done so by using the term "courts" rather than "judicial tribunals." Thus, we are of the view that the intent of the framers was to allow representations before a body or bodies in addition to the courts. However, it seems to be equally clear that had the framers intended to allow legislator representations before all state agencies when those agencies exercise quasi-judicial power, they could specifically have done so by referencing that power.

Thus, in attempting to place a proper interpretation upon the term "judicial tribunal," the question basically becomes this: Which, if any, commissions, administrative officers or bodies which have been granted quasi-judicial power under s. 1, Art. V, should be considered judicial tribunals?

Apparently any agency which is a judicial tribunal must exercise power which is more than merely quasi-judicial but which falls short of the judicial power granted to the courts. We have found only one judicial decision in this state which directly bears upon these considerations, Scholastic Systems, Inc. v. LeLoup, 307 So.2d 166 (Fla. 1974), a decision which we note occurred prior to the initiation of the petition drive to have the Sunshine Amendment placed on the ballot.

In Scholastic Systems the Supreme Court directly held that the Industrial Relations Commission (I.R.C.), although a part of the executive branch within the Department of Commerce, is a judicial tribunal functioning in a judicial capacity in its reviews of workmen's compensation appeals. This decision apparently was the result of a prior opinion of the Supreme Court, In re Florida Workmen's Compensation Rules of Procedure, 285 So.2d 601 (Fla. 1973), in which the court approved rules of procedure submitted to it by the Industrial Relations Commission, stating:

A Judge of Industrial Claims is a quasi-judicial officer under the authority of Florida Statutes, Section 20.17(7), F.S.A., whose duties are devoted exclusively to the trial and disposition of workmen's compensation claims of industrial employees. The Industrial Relations Commission created as aforementioned is a quasi-judicial body devoted exclusively to a review of orders of Judges of Industrial Claims in workmen's compensation proceedings under principles announced by the appropriate appellate courts and statutes of the State of Florida, and the review of orders of appeals referees in unemployment compensation proceedings. The workmen's compensation proceedings aforementioned are subject to review by the Supreme Court of Florida (Florida Statutes, Section 440.27(1), F.S.A.) . . . .

In workmen's compensation cases, we, therefore, have a duplicitous situation where the litigation is quasi-judicial at one level and judicial when it reaches this Court. Because the total authority in workmen's compensation cases involves the review on appeal of the Judges of Industrial Claims and the Industrial Relations Commission, we deem such litigation to be more judicial than quasi-judicial. [Italicized emphasis supplied.]

As a result of this view of litigation in workmen's compensation cases, the Supreme Court held in Scholastic Systems that there was no need for the extensive, appellate type of review it had previously given decisions of the I.R.C., and that henceforth its consideration of those decisions would be governed by a less strict standard. This was permitted by the constitutional requirement of due process because

[a] party is afforded his "day in court" with respect to administrative decisions when he has a right to a hearing and has the right of an appeal to a judicial tribunal of the action of an administrative body. [Scholastic Systems, supra, at p. 169.] Thus, as the court stated later in that opinion, the I.R.C. provides the equivalent review of workmen's compensation litigation that the district courts of appeal provide in other cases.

Hearing officers play an important role in the functioning of the Administrative Procedure Act (A.P.A.). Section 120.65, F. S. (1976 Supp.), provides in part:

(1) There is hereby created the Division of Administrative Hearings within the Department of Administration, to be headed by a director who shall be appointed by the Administration Commission and confirmed by the senate. The division shall be exempt from the provisions of chapter 216.

(2) The division shall employ full-time hearing officers to conduct hearings required by this chapter or other law. No person may be employed by the division as a full-time hearing officer unless he has been a member of The Florida Bar in good standing for the preceding 3 years.

Under the A.P.A. a hearing officer may participate in two types of proceedings: In an administrative determination of the invalidity of a rule under s. 120.56 or s. 120.54(4); or in a formal proceeding in which the substantial interests of a party are determined by an agency under s. 120.57(1).

Under the first type of proceeding, a person substantially affected by an agency's rule or proposed rule may petition for an administrative hearing before a hearing officer and seek to show that the rule is an invalid exercise of delegated legislative authority. Sections 120.56 and 120.54(4), F. S. (1976 Supp.). Following the hearing, the hearing officer may declare all or part of a rule or proposed rule invalid, stating his reasons in writing. Sections 120.56(3) and 120.54(4)(c). The hearing is intended to be an adversary proceeding between the petitioner and the agency whose rule is attacked, with the hearing officer's determination constituting final agency action reviewable by the courts as provided in s. 120.68. Sections 120.56(4), 120.54(4)(d), and 120.68, as amended by Ch. 77-104, Laws of Florida.

The second type of proceeding which may involve a hearing officer is a full, formal hearing with the presentation of evidence and argument on all issues pursuant to s. 120.57(1), F. S., as amended by Ch. 77-453, Laws of Florida. Following this type of hearing, the hearing officer is to submit a recommended order consisting of his findings of fact; conclusions of law; interpretation of administrative rules; recommended penalty, if applicable; and any other information required by law or agency rule. Section 120.57(1)(b)8., F. S., as amended by Ch. 77-453, Laws of Florida. At this time each party may submit written exceptions to the recommended order to the agency, and the agency then determines whether to adopt, reject, or modify the proposed order in composing its final order. In the final order the agency may reject or modify the recommended conclusions of law and interpretation of administrative rules but may not reject or modify the recommended findings of fact unless it determines that they were not based upon competent, substantial evidence or that the proceedings did not comply with essential requirements of law; in order to increase a recommended penalty, the agency must review the complete record. Section 120.57(1)(b)9., F. S., as amended by Ch. 77-453, Laws of Florida. The final order of the agency constitutes final agency action subject to judicial review under the provisions of s. 120.68, F. S. (1976 Supp.).

Under the provision of the A.P.A. regarding judicial review of agency actions, s. 120.68, most proceedings for review are instituted by filing a petition in an appropriate district court of appeal. The A.P.A. provides fairly detailed requirements of the scope and standards of judicial review of agency actions in that section, depending upon whether the errors alleged are of procedure, interpretations of law, findings of fact, failure to follow established policies, or in excess of agency discretion.

We are unable to perceive any analogy between the functions of the Industrial Relations Commission, a judicial tribunal, and the functions of hearing officers under the Administrative Procedure Act which would enable us to describe their functions as "more judicial than quasi-judicial." Judicial review in workmen's compensation proceedings is provided by the I.R.C.; judicial review of administrative matters, under the terms of the A.P.A., is provided by the courts -- the district courts of appeal and, in some cases, the Supreme Court.

Moreover, under the A.P.A. a hearing officer is to provide only a recommended order, with the final order and proper exercise of delegated power residing with the agency. The hearing officer does not determine issues of law and fact and has no authority to apply the sanctions of the law. See Scholastic Systems, 307 So.2d (Fla. 1974) at 169-170.

Accordingly, we are of the opinion that, unless judicially clarified to the contrary, your representation of a client for compensation in formal proceedings before a hearing officer pursuant to Ch. 120, F. S., does not constitute a representation before a judicial tribunal under s. 8(e), Art. II of the Florida Constitution. Please note that the case of Myers v. Hawkins, Case No. 52,639, is presently pending before the Supreme Court of Florida. The primary issue for decision in that case is whether the Public Service Commission constitutes a "judicial tribunal" under s. 8(e), Art. II of the Florida Constitution. Consequently, we expect that the Supreme Court's opinion will have a significant impact upon this opinion, which is strictly advisory in nature and lacks the binding effect of our opinions relating to the Code of Ethics for Public Officers and Employees under s. 112.322(3)(b), F. S. 1975.