CEO 94-29 -- June 2, 1994

POST-EMPLOYMENT RESTRICTIONS

FORMER DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION

ATTORNEY REPRESENTING CLIENTS BEFORE DEPARTMENT

To: Mark Herron, Attorney (Tallahassee)

SUMMARY:

The post-employment restriction contained in Section 112.313(9)(a)4, Florida Statutes, would prohibit an attorney who formerly was employed with the Department of Business and Professional Regulation from personally representing clients before his former agency, the Division of Regulation, and before each board or program he advised or represented at the time he left employment, for two years following that date. Referenced are CEO's 93-14, 91-49, 88-49, 88-48, 88-2, 81-23, and 79-78.

QUESTION:

Does Section 112.313(9)(a)4, Florida Statutes, prohibit an attorney formerly employed in the Department of Business and Professional Regulation's Division of Regulation who had responsibilities involving specific boards and programs from representing any clients before the entire Department for a period of two years following vacation of position?

Your question is answered in the negative, under the circumstances presented.

Through your letter of inquiry we are advised that you seek this opinion on behalf of Mr. Anthony Cammarata who, until recently, was employed as a Senior Attorney with the Department of Business and Professional Regulation (DBPR).

You represent that this individual first became employed in July 1992 by DBPR's predecessor, the Department of Professional Regulation (DPR), and served in its legal section, a bureau within the Division of Regulation. His initial responsibilities included representing the Board of Accountancy within the Division of Certified Public Accountancy. Later, he was reassigned to represent the Board of Employee Leasing Companies, the Board of Pilot Commissioners, and the Florida Board of Auctioneers. With respect to his responsibilities in this regard, you relate that he regularly appeared before each of these boards and that he also handled administrative litigation involving the Board of Professional Engineers, the Electrical Contractors Licensing Board, and the Board of Pharmacy. His appearances before these latter boards was of a more limited nature, you advise. Additionally, we are advised that he served as the legal advisor and prosecutor within DPR for the regulation of talent agencies. When DPR became responsible for regulating operators of water and wastewater treatment plants, he began serving as legal advisor and prosecutor for that program as well.

On July 1, 1993, DPR was effectively abolished and merged with the Department of Business Regulation (DBR) to become the Department of Business and Professional Regulation. Employees of both agencies and their functions were transferred to this newly created Department. This attorney's employer then became DBPR, although his duties remained essentially unchanged.

His departure from DBPR was in late April 1994. You seek to determine the parameters of the restrictions set forth in Section 112.313(9) on his ability to represent clients before his former Department.

The Code of Ethics for Public Officers and Employees provides in pertinent part:

No agency employee shall personally represent another person or entity for compensation before the agency with which he was employed for a period of 2 years following vacation of position, unless employed by another agency of state government. [Section 112.313(9),(a)4, Florida Statutes.]

This statute prohibits certain categories of employees, such as those who were in the Select Exempt Service like the subject attorney, from personally representing another person or entity for compensation before their former agencies for a period of two years following vacation of position. You point out that the "grandfather" provision contained in Section 112.313(9)(a)6 is inapplicable, since this individual became employed after July 1, 1989.

At issue, then, is the "agency" of this former employee. The definition of "agency" contained in Section 112.312(2) provides that the term means

any state, regional, county, local or municipal government entity of this state, whether executive, judicial or legislative; any department, division, bureau, commission, authority or political subdivision of this state therein; or any public school, community college or state university.

As you note, in innumerable opinions we have construed the term "agency" for the purposes of establishing the standard of public duty for public officers and employees under the standards of conduct set forth in Section 112.313, Florida Statutes. A number of our opinions involved employees of the Department of Professional Regulation; there, we opined that the "agency" of a DPR employee whose primary responsibilities related to a particular board within the Department was that board. See CEO 88-49, CEO 88-48, CEO 81-23, and CEO 79-78. On the other hand, with regard to a staff attorney employed by the Department of Business Regulation, we opined that his agency was the entire Department because his position was assigned to the Office of the Secretary of the Department. See CEO 88-2. None of these referenced opinions involved post-employment issues, however.

Another opinion, CEO 91-49, was issued to a former attorney with the Governor's Office of Planning and Budgeting who was interested in serving as a mediator in cases before the Florida Administration Commission. Although his responsibilities in the Governor's Office included acting as counsel to the Commission, we opined that the post-employment restriction [then codified in Section 112.3141(1)(d)] would not be violated, since we did not view his serving as a mediator or a neutral third party as the equivalent of representing a client before his former agency.

In CEO 93-14, we issued a very detailed advisory opinion involving post-employment restrictions to an attorney formerly employed by the Department of Environmental Regulation (DER). DER's Office of General Counsel was located within the Office of the Secretary, so, as in CEO 88-2, her "agency" for purposes of the Code of Ethics was found to be the entire Department. That opinion also examined the effect of the merger between DER and the Department of Natural Resources on the limitations of Section 112.313(9)(a)4. We concluded there that she was prohibited from personally representing clients before her former agency or before its successor, the Department of Environmental Protection, in matters involving DER personnel or DER concerns for two years after leaving the Department.

In the matter before us, we believe that the appropriate rationale for examining your client's post-employment restrictions is a combination of the advice rendered in all of the referenced opinions. We do not believe it to be appropriate or consistent with our previous opinions to view his "agency" as the entire Department, either pre- or post-merger. Instead, it is our view that his "agency" consisted of the Division of Regulation as well as each board or program he represented or advised at the time he left employment in April 1994. From the information you have provided it appears that this restriction would include the following boards and regulatory programs: Board of Employee Leasing Companies, Board of Pilot Commissioners, Florida Board of Auctioneers, Board of Professional Engineers, Electrical Contractors Licensing Board, Board of Pharmacy, talent agency regulation, and water and wastewater treatment plants operator regulation. We adopt this view because it is in keeping with the intent of this restriction--to prevent influence peddling and the use of public office to create opportunities for personal profit once officials leave office--and it effectively and fairly achieves the intended result of Section 112.313(9)(a)4.

Accordingly, under the circumstances presented, we find that Section 112.313(9)(a)4, Florida Statutes, prohibits an attorney who was formerly employed by the Division of Regulation within the Department of Business and Professional Regulation from personally representing clients for two years before that Division and before each board or program he represented or advised at the time he left employment with the Department.