CEO 89-57 -- October 26, 1989
EXECUTIVE BRANCH LOBBYING
REGISTRATION OF REPRESENTATIVES OF FLORIDA
INSTITUTIONAL LEGAL SERVICES
To: Richard A. Belz, Esquire, Executive Director, Florida Institutional Legal Services, Inc. (Gainesville)
An attorney or paralegal employed by Florida Institutional Legal Services need register as a lobbyist only when attempting to influence an agency on a matter of general agency policy. They do not need to register when negotiations concern merely an individual client unless those negotiations also include attempts to influence agency policy which would apply to individuals or entities other that the client. Due to the corporation's unique nature and limited classes of clients, attorneys and paralegals lobbying on behalf of FILS clients need only list their principal on the registration form as "Florida Institutional Legal Services." If the representative wishes to register so as to lobby all agencies, then the portion of the registration form for agencies before which the representative will appear may be left blank.
Under what circumstances should paralegals and attorneys negotiating with the Department of Corrections or the Department of Health and Rehabilitative Services on behalf of individual clients represented by Florida Institutional Legal Services register as lobbyists?
Your question is answered below.
In your letter of inquiry you advise that you are an attorney and the executive director of the Florida Institutional Legal Services, Inc. (FILS), a private nonprofit legal services corporation. The stated goal of the corporation is to provide legal services to indigents in institutions operated by governmental agencies in the State of Florida. These institutions include county jails, facilities of the Department of Health and Rehabilitative Services, and institutions operated by the Department of Corrections.
You state that your legal representation involves negotiation and litigation. A lawyer employed by FILS cannot always determine if a particular problem will require litigation until the agency gives a final response. Negotiations sometimes are undertaken to change an agency's basic policies so as to avoid the problem in the future for other clients.
Funding for much of the corporation's work is provided by contract with the Florida Department of Corrections, and the remaining funds are provided by the Florida Bar Foundation under the Interest on Trust Account (IOTA) program. Attorneys or paralegals working for FILS are considered to be salaried employees.
You request guidance as to when negotiations on behalf of individual clients with agencies such as the Florida Parole Commission or the Florida Department of Corrections constitute "lobbying" as defined by Section 112.3215, Florida Statutes, thereby requiring FILS attorneys or paralegals to register.
Section 112.3215, Florida Statutes, prohibits a person from lobbying an agency until he has registered as a lobbyist with this Commission. "Lobbying" or "lobbies" is defined in Section 112.3215(1)(b) and Rule 34-12.020(2), Florida Administrative Code, as "seeking, on behalf of another person, to influence an agency with respect to a decision of the agency in the area of policy or procurement." "Policy" is defined in Rule 34-12.020(4) as
a plan or course of action which is applicable to a class of persons, proceedings, or other matters, and which is designed to influence or determine the subsequent decisions and actions of an agency, such as any plan or course of action which would constitute a 'rule' as defined in Section 120.52, Florida Statutes. The term does not include the adjudication or determination of any rights, duties, or obligations of a person made on a case-by-case basis, such as would be involved in the issuance or denial of a license, permit, or certification or in a disciplinary action or investigation involving a person."
A "lobbyist" includes employees whose primary or most significant responsibility is representing the employer in its contacts with government, as FILS employees appear to be. Section 34-12.100(1). However, a "lobbyist" does not include a person who represents a client in a judicial proceeding or in a formal administrative proceeding conducted pursuant to Chapter 120 or in any other formal hearing before an agency, board, commission or authority of this State. Section 112.3215(1)(a)1, Florida Statutes. "Procurement" is defined as the "purchase or acquisition of any property, interest in property, or services by an agency." Rule 34-12.020(5), Florida Administrative Code.
When involved in negotiation with the above agencies, FILS attorneys or paralegals are not engaged in "lobbying" so long as they merely are seeking to influence the agency's decision with regard to an individual client. If, however, during the course of these negotiations the attorney or paralegal not only attempts to convince the agency to change its position with regard to the individual client, but also attempts to convince an agency to change its general policy relating to similarly situated persons, then the FILS employee is engaging in lobbying and should register.
Thus, if a petition or other pleading commencing the administrative or judicial proceeding has not been filed and the FILS representative merely is seeking to influence the agency's decision with regard to a specific client, the representative need not register. If, prior to filing a petition for hearing and in the course of attempting to influence an agency's decision with regard to a specific client, the representative attempts to persuade the agency to adopt or alter its policy as it pertains to both the individual client and other individuals or entities, then the representative must register as a lobbyist. In either case, if the representative has filed a petition for hearing, he need not register.
In every case where the rule of an agency is challenged and negotiations are begun prior to filing the rule-challenge petition, the representative would be required to register as a lobbyist. Once a petition is filed, he no longer meets the definition of a lobbyist under Section 112.3215(1)(a), and therefore cannot be required to register.
The only attorneys or paralegal employed by FILS who are required to register are those engaged in lobbying as defined above. As the registration law applies to individual lobbyists, FILS may not register as an entity in behalf of all of its employees; rather, each employee should register individually as the need arises. If it becomes apparent that an attorney will need to try to change general agency policy only after he already is participating in negotiations with the agency, then he may have a registration form notarized immediately and mail the form to the Commission, thereby continuing the negotiations without a substantial interruption. See Rule 34-12.210.
Accordingly, prior to the filing of an administrative petition or prior to commencing a judicial proceeding, an attorney or paralegal employed by Florida Institutional Legal Services need only register as a lobbyist if he attempts to influence an agency's general policy.
How may representatives of FILS list the agencies before whom they may appear, and what business address of each principal must be listed, as FILS represents at any one time hundreds and possibly thousands of inmates before potentially any agency?
Your question is answered below.
The registration form, Commission on Ethics Form 20, requires that a separate form or card be used for each principal. The principal who must be listed is the principal on whose behalf the particular representative is lobbying. You indicate that FILS representatives always will be lobbying on behalf of inmates confined in the custody of the Florida Department of Corrections, residents held in facilities operated by the Department of Health and Rehabilitative Services, and pretrial detainees and sentences offenders in county jails. We believe the principal on whose behalf FILS representatives will be lobbying is FILS, and therefore Florida Institutional Legal Services should be listed as the principal. This is due to the fact that FILS is uniquely designed only to represent the above mentioned classes of individuals, as well as the fact that the inmates, residents, detainees, or offenders do not compensate the attorneys or paralegals, who are compensated by FILS. Therefore, listing FILS as the principal sufficiently discloses to the public on whose behalf they are attempting to influence agency policy.
You also ask whether each attorney or paralegal can list the agencies before which he will appear as "the governor, governor and cabinet, and all departments, divisions, bureaus, boards, commissions, or authorities of the executive branch." The FILS representatives may list the agencies before which they will appear in this manner. However, the registration card states, under the area for listing agencies, that if no agencies are listed it will be presumed that the lobbyist is registered to appear before all executive branch agencies. The representatives therefore may choose simply to leave this area blank. The representative should be careful to remember to disclose the existence of any direct or indirect business association, partnership, or financial relationship with any employee of all executive branch agencies, if he is registered to represent a principal before all such agencies. Rule 34-12.300, Florida Administrative Code.
Your question is answered accordingly.