CEO 95-14 -- July 13, 1995
FORMER DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION
SENIOR CONSTRUCTION ATTORNEY REPRESENTING CLIENTS
BEFORE THE CONSTRUCTION INDUSTRY LICENSING
BOARD, OTHER BOARDS OF DBPR, AND THE
DIVISION OF ADMINISTRATIVE HEARINGS
To: (Name withheld at the person's request.)
A former Department of Business and Professional Regulation ("DBPR") Senior Construction Attorney is prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing contractors before the Construction Industry Licensing Board ("CILB") for two years following termination of her employment, as well as any other DBPR board where attorneys of DBPR's Division of Regulation, who normally prosecute complaints before the other boards, also possess delegated final agency authority to dismiss complaints filed with the boards. The former construction attorney's "agency" for purposes of the statute is the CILB and the Division of Regulation, or more specifically, the Legal Section within the Division. The construction attorney would not be prohibited from representing health care providers before the Board of Medicine within the Agency for Health Care Administration because that Board was not her "agency" under the statute.
Because the former construction attorney's representation of a contractor in a Division of Administrative Hearings ("DOAH") hearing as to which the CILB has final order authority constitutes representation "before her agency," she would be prohibited from representing the contractor in such a proceeding for the two year period. However, other members of her law firm would not be prohibited from representing contractors before DBPR, the CILB, or DOAH, because the prohibition applies only to situations where the attorney "personally represents" the client.
Does Section 112.313(9)(a)(4), Florida Statutes, prohibit you, an attorney who was formerly employed by the Department of Business and Professional Regulation (DBPR) as a Senior Construction Attorney to prosecute licensed contractors under Chapter 489, Florida Statutes, from representing medical care providers before the Agency for Health Care Administration, the Board of Medicine, or the Division of Administrative Hearings for two years after your employment with the Department?
Your question is answered in the negative.
Through your letter of inquiry, you advise that prior to April 17, 1995, when you became employed by a private law firm which primarily represents physicians in medical malpractice cases, you were employed as a Senior Construction Attorney by the Department of Business and Professional Regulation (DBPR). You also advise that although you had been employed with DBPR since November 8, 1992, you never prosecuted any licensees of DBPR other than contractors. Those prosecutions were effected under Chapter 489, Florida Statutes, you advise. At no time, you write, did you ever appear before the Agency for Health Care Administration on behalf of the Department.
From further discussions between you, your former supervisor, the lead construction attorney for DBPR, and our staff, we are advised that attorneys employed by DBPR are located in the Division of Regulation, which consists of the Consumer Complaints Section, the Investigations Section, and the Legal Section. Procedurally, when a complaint against a licensee of the Construction Industry Licensing Board ("CILB") is received by the CILB, the Consumer Complaints Section first determines its sufficiency. If it is determined to be sufficient, it is then assigned to the Investigations Section for investigation. Finally, after the investigation is completed, it is sent to Legal for a determination of whether to prosecute. If the reviewing attorney determines that it should be prosecuted, he or she prepares a complaint for presentation to the Board for a probable cause determination. However, if the attorney determines that the complaint should not be prosecuted, then, pursuant to Rule 61G4-12.010(6), F.A.C., which delegates authority to DBPR to make the initial determination of whether to prosecute a complaint, a closing order is prepared and issued by DBPR. Pursuant to this rule, all closing orders issued during the preceding month are sent to the Chair of the CILB for his or her review of and comment on the DBPR's application of Chapter 489, Florida Statutes. At this last stage, you advise, while with the Department your only contact with a subject of a complaint might occur if you were to contact him or her regarding the status of the matter complained of.
You further advise that while you never presented a case to the CILB's probable cause panel, your supervisor did. However, on occasion you attended CILB meetings with your Supervisor and stood in for her. However, neither you nor your supervisor actually represented the CILB; an attorney from the Department of Legal Affairs did. Furthermore, if a complaint was not dismissed at the probable cause stage and the CILB determined that there was probable cause to believe that the Respondent had violated Chapter 489, then the complaint would either go to formal or informal hearing or be "stipulated out," you advise. Formal hearings would be handled at the fact finding stage by a Division of Administrative Hearings (DOAH) Hearing Officer who would transmit the recommended order to the CILB for final action. Alternatively, if a stipulation between you and a Respondent was reached, it would be presented to the CILB by your supervisor, rather than by you, for its review and acceptance or rejection. Although all of the complaints that you handled resulted in stipulations (none went to formal hearing before DOAH), your position was responsible for prosecuting complaints before DOAH.
Under these circumstances, you ask whether your past employment with the Department of Business and Professional Regulation precludes you from personally appearing before the Agency for Health Care Administration, the Board of Medicine, or the Division of Administrative Hearings on behalf of a medical care provider.
The Code of Ethics for Public Officers and Employees provides in pertinent part:
POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES. -- 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 provision prohibits certain categories of employees, such as yourself, a former Selected Exempt Service employee, from personally representing another person or entity for compensation before their former agencies for a period of two years following vacation of position. See Section 112.313(9)(a)2.a(I), Florida Statutes for the definition of the term "employee." We note that since you became employed by DBPR after July 1, 1989, the "grandfather provision" contained in Section 112.313(9)(a)6 is inapplicable.
Inasmuch as we have determined that you are an "employee" for purposes of the statute, we next must determine what your "agency" is for purposes of Section 112.313(9)(a)4. For this, we look to Section 112.312(2), Florida Statutes, which defines the term "agency" to mean
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.
In previous opinions we have said that the Legislature intended by this definition to define a State employee's agency as the lowest departmental unit within which his or her influence might reasonably be considered to extend. See, for example CEO 82-75 and CEO 77-83. In CEO 94-29, we observed that a number of our opinions involved employees of the Department of Professional Regulation. In these opinions, we invariably found 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 (agency of Senior Clerk for the Board of Auctioneers is the Board); CEO 88-48 (agency of clerk typist specialist or senior clerk with the Division of Real Estate is the Division); CEO 81-23 (agency of executive director of the Board of Dentistry is the Board); and CEO 79-78 (agency of executive director of the State Board of Accountancy is the Board of Accountancy because his primary responsibilities relate to that Board, even though he is an employee of the Department's Division of Professions). In CEO 94-29, we also observed that in CEO 88-2 we had found that because the position of staff attorney of the Department of Business Regulation was assigned to the Office of the Secretary of the Department, his agency was the entire Department. However, none of these opinions involved post-employment issues. Notwithstanding the above, we also noted in CEO 94-29 that on July 1, 1993, the Department of Professional Regulation (DPR) was effectively abolished and merged with the Department of Business Regulation (DBR) to become DBPR. Employees of both agencies and their functions were transferred to this newly created Department. Thus, as of July 1, 1993, your employer became DBPR. However, your duties remained essentially unchanged.
In view of the above opinions and because your position was responsible for the prosecution of contractors and the settlement of complaints on behalf of the CILB, in other words, your primary responsibilities related to the CILB, we find that notwithstanding your representation that the CILB was advised by an attorney from the Department of Legal Affairs, your agency for purposes of Section 112.313(9)(a)4 was the CILB. We also find that your agency is the Division of Regulation within the DBPR or more precisely, the Legal Section, which we assume would be analogous to a bureau in another agency.
We noted in CEO 93-14 that the statute's prohibition against representing a client before one's former agency is intended to prohibit contacts with the agency, through any of the actions within the definition of "represent," on behalf of a client and with the intent of seeking to influence the agency's decision. We analogized Section 112.313(9)(a)4 to Article II, Section 8(e), Florida Constitution, where the identical language is applicable to members of the Legislature. We opined that Article II, Section 8(e) is intended to prevent the appearance of impropriety, to prohibit a public officer from exploiting the special knowledge or influence gained from his public position for private gain after leaving his public position, and to restrict interactions between a former legislator and his former colleagues. Consequently, we opined that a former agency attorney, like the former legislator, also would have been in a position to gain personal influence and affiliation with Department personnel, many of whom would be still acting for the Department in matters involving the attorney's private clients. Thus, the two year prohibition has been found by us to apply in situations where the former employing agency of an attorney has final order authority over a matter as to which the attorney is providing representation to a client.
Accordingly, we find that because other DBPR boards and the Board of Medicine within the Agency for Health Care Administration were not your agencies for purposes of Section 112.313(9)(a)4, you would not be prohibited from representing clients before them. If you appeared before them, you neither would be exploiting the special knowledge or influence gained from your public position as a Senior Construction Attorney nor giving the appearance of having done so. However, because of your presumed personal influence and affiliation with the attorneys employed in the Legal Bureau, your former "agency," we find that you would be representing a client before your agency at the stage of the proceeding prior to the probable cause stage in which a Division of Regulation attorney may be permitted either by rule or practice to exercise final agency authority to dismiss a complaint, as occurs when the Lead Construction Attorney for the CILB exercises his or her authority to issue closing orders after deciding not to prosecute a complaint. Therefore, we are of the opinion that you would be prohibited from representing a client with respect to a complaint that could come before one of DBPR's Boards other than the CILB at that stage of the proceeding for two years following your termination of employment with your former agency. Nevertheless, we are of the opinion that you would not be prohibited from representing a client at all other later stages of the proceeding, such as before DOAH or DBPR boards other than the CILB during the two-year prohibition period.
Does Section 112.313(9)(a)4, Florida Statutes, preclude you from personally representing a "contractor," as that term is defined under Section 489.105, Florida Statutes, before the Department of Business and Professional Regulation, the Construction Industry Licensing Board, or the Division of Administrative Hearings?
Your question is answered in the affirmative.
With respect your representing a contractor before DBPR and the CILB, refer to the response to Question I above. With respect to your representing a contractor before DOAH, we adhere to our opinion and reasoning as expressed in CEO 93-14. There we opined as follows:
[Y]our representing the client at DOAH, . . . . would violate [Section 112.313(9)(a)4, F.S.] because making discovery requests, taking depositions, examining witnesses, filing documents with the Department or Departmental personnel, or engaging in personal communications with personnel of the Department come with the meaning of "represent" for purposes of [Section 112.313(9)(a)4]. Written discovery requests (interrogatories, requests for production of documents, notices of taking deposition, etc) sent under your signature to the Department or its personnel, or your questioning of Departmental personnel at hearing or depositions similarly would constitute such "representation." While we previously have not had occasion to issue an advisory opinion as the application of Section 112.313(9)(a)4 in the context of matters involving DOAH under Section 120.57(1), our finding here is in accord with our recognition of the purposes of identical language applicable to members of the Legislature under Article II, Section 8(e), Florida Constitution, to prevent the appearance of impropriety to prohibit a public officer from exploiting the special knowledge or influence gained from his public position for private gain after leaving his public position, and to restrict interactions between a former legislator and his former colleagues. See CEO 77-168, and CEO 90-4, Question 2. As a former Department staff attorney, you would have been privy to such special knowledge and you would have been in a position to gain personal influence and affiliation with Departmental personnel, many of whom would, of course, still be acting for the Department in matters involving your private clients.
In our view, the prohibition against representing a client before one's former agency is intended to prohibit contacts with the agency, through any of the actions within the definition of "represent," on behalf of a client and with the intent of seeking to influence the agency's decision. We view such matters and your "representation" in them to be "before [your former] agency," even though your former agency would be utilizing the services (essentially fact-finding functions) of DOAH through a petition referral. Since your former employer (DER) would be the agency with jurisdiction to enter the final order in such matters.
Accordingly, we find that you would be prohibited from representing a "contractor," as that term is defined under Section 489.105, Florida Statutes, before DBPR's Division of Regulation, the Construction Industry Licensing Board, and the Division of Administrative Hearings.
Does Section 112.313(9)(a)4, Florida Statutes, preclude other members of the law firm that employs you from appearing before the Department of Business and Professional Regulation, the Construction Industry Licensing Board, or the Division of Administrative Hearings during their representation of a contractor?
Your question is answered in the negative.
We noted in CEO 93-14 that the terms "represent" or "representation" is defined at Section 112.312(22), Florida Statutes, to mean
actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or the 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.
We found that as this 'revolving door' prohibition applies only to situations where the attorney/former agency employee "personally represents" a client; it limits only the attorney's activities and not those of the other members of the law firm where the attorney now is employed.
Accordingly, we find that other members of your law firm would not be prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing contractors/clients before DBPR, the Construction Industry Licensing Board, or DOAH.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 13, 1995, and RENDERED this _____ day of July, 1995.
William J. Rish