CEO 94-7 -- March 10, 1994

EXECUTIVE BRANCH LOBBYING

APPLICATION OF EXECUTIVE BRANCH LOBBYIST REGISTRATION ACT

TO TRI-COUNTY COMMUTER RAIL AUTHORITY

To: (Name withheld for lack of consent.)

SUMMARY:

An attorney who represents a client before the Tri-County Commuter Rail Authority is not required, pursuant to Section 112.3215, Florida Statutes, to register as a "lobbyist" and file expenditure reports. Section 112.3215 only concerns lobbyists who appear before executive branch agencies, and the Tri-County Commuter Rail Authority is not an executive branch agency for purposes of Section 112.3215, Florida Statutes.

QUESTION:

Are you required to register as a lobbyist pursuant to Section 112.3215, Florida Statutes, when you represent a client before the Tri-County Commuter Rail Authority?

Your question is answered in the negative.

In your letter of inquiry, you relate that you are an attorney in private practice and in 1993 represented a corporation before the Tri-County Commuter Rail Authority ("TCRA") regarding the award of a contract. Your client ultimately was awarded the contract through a request for proposal process, with the contract negotiated and signed in October 1993. Based upon the statutory changes to Section 112.3215, Florida Statutes, and the subsequent amendments to Rule Chapter 34-12, Florida Administrative Code, you question whether you were required to register as an executive branch lobbyist for 1993 when you represented your client before the TCRA.

For purposes of executive branch lobbyist registration and reporting, Section 112.3215(1)(a), Florida Statutes, defines "agency" as

the Governor, Governor and Cabinet, or any department, division, bureau, board, commission, or authority of the executive branch.

Identical wording for that term is used in our rule, Rule 34-12.020(1), Florida Administrative Code.

It is our view that the term "agency" in the statute and rule was intended to define only those bodies before whom "lobbyists" would have to register prior to appearing and lobbying. Although the 1993 amendments to Section 112.3215, Florida Statutes, expanded the statutory definition of "lobbyist" to include the concept that a lobbyist representing a "governmental entity" before an executive branch agency would have to comply with the registration and reporting requirements, it did not, in our view, broaden the definition of "agency" to include bodies not formerly considered to be executive branch agencies. Since you are representing a client before the TCRA, the issue which must be examined further is whether the Tri-County Commuter Rail Authority is an "authority of the executive branch" for purposes of Section 112.3215, Florida Statutes.

In our opinion, the Tri-County Commuter Rail Authority is not an executive branch agency for purposes of Section 112.3215, Florida Statutes. As you know, the State Constitution contemplates the separation of powers within State government among the legislative, executive, and judicial branches of government. Further, Article IV, Section 6, Florida Constitution, provides in relevant part:

All functions of the executive branch of state government shall be allotted among not more than twenty-five departments, exclusive of those specifically provided for or authorized in this constitution. . . . .

The Tri-County Commuter Rail Authority is not provided for in either the Florida Constitution or in Chapter 20, Florida Statutes, which contains the organizational structure of the executive branch and describes the departments it entails. Moreover, there is no indication from our review of Chapter 343, Part I, Florida Statutes, that the TCRA was intended to be considered an "executive branch" agency.

While we recognize that this Commission recently addressed a similar issue in Complaint No. 90-250, In re George Stuart (Final Order dated February 1, 1994), that decision is distinguishable from the situation confronted here. In Stuart, we determined that Article II, Section 8(e), Florida Constitution, had been violated where a state senator appeared before the Orlando-Orange County Expressway Authority (OOCEA) representing the interests of his private employer. The issue there was whether the OOCEA was a "state agency" for purposes of Article II, Section 8(e), Florida Constitution, and we determined that it was. Here, the issue is not whether the TCRA is a "state agency" for purposes of Article II, Section 8(e), Florida Constitution, but whether the TCRA is within the executive branch for purposes of Section 112.3215, Florida Statutes.

While the Tri-County Commuter Rail Authority is similar in many respects to the statutory creature that is the Orlando-Orange County Expressway Authority, lacking here are the same, compelling public policy reasons to hold that the Tri-County Commuter Rail Authority is an executive branch agency for purposes of Section 112.3215, Florida Statutes. The purpose of the constitutional prohibition was expressed in the Stuart Recommended Order, which we approved and adopted in its entirety in our Final Order and Public Report, as follows:

In Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978) the Supreme Court stated:

. . . we are always obliged to interpret a constitutional term in light of the primary purpose for which it has been adopted. Both Myers and the amici recognize that the Sunshine Amendment was evolved to establish an arsenal of protections against the actual and apparent conflicts of interest which can arise among public officials, and that Section 8(e) was designed specifically to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having influence) when they appear before the agencies as compensated advocates for others. (Emphasis added.)

Clearly, the Executive Branch Lobbyist Registration and Reporting law contained in Section 112.3215, Florida Statutes, has a different purpose. Chapter 89-325, Laws of Florida, from which Section 112.3215, Florida Statutes, was codified, stated in Section 1:

The Legislature finds that the regular public disclosure of the identity, expenditures, and activities of those who seek business with the State of Florida, or who seek to influence the activities of the state, for or on behalf of another, reduces the appearance of and opportunity for favoritism and encourages the operation of responsible government.

While the goal of regular public disclosure by lobbyists is to be encouraged, we do not see how that goal would be achieved for bodies such as the TCRA, particularly because registrations and expenditure reports are filed with the Commission's registrar in Tallahassee rather than in the area which the TCRA encompasses.

Additionally, the use of the phrase "State of Florida" in Section 1 of 89-325, Laws of Florida, mirrors Section 20.04, Florida Statutes, which provides:

STRUCTURE OF EXECUTIVE BRANCH.--The executive branch of state government is structured as follows:

(1) The department is the principal administrative unit of the executive branch. Each department shall bear a title beginning with the words 'State of Florida' and continuing with 'Department of ___.'

Section 343.53(1), Florida Statutes, the law which created the TCRA, states:

There is created and established a body politic and corporate, an agency of the state, to be known as the 'Tri-County Commuter Rail Authority,' hereinafter referred to as the 'authority.'

Thus, the appellation given by law to the TCRA further establishes, in our view, the correct answer to the question presented, i.e., that the TCRA is not an executive branch agency for purposes of Section 112.3215, Florida Statutes.

While nothing in this opinion should be read to suggest that the TCRA cannot adopt its own lobbyist registration and reporting requirements, as other agencies have, we do conclude that you did not have to register as a lobbyist and file expenditure reports under Section 112.3215, Florida Statutes, when you represented a client before the Tri-County Commuter Rail Authority.

Your question is answered accordingly.