APPLICABILITY OF TWO-YEAR "REVOLVING DOOR"
To: (Name withheld at the person=s request.)
SUMMARY:
The staff director to the Commission on Long-Term Care in Florida is not subject to the post-employment restrictions contained in Section 112.313(9)(a), Florida Statutes, which prohibit certain State employees from representing persons or entities for compensation before their former agency for two years after leaving public employment. The position of staff director to the Commission is not specifically enumerated in the statutory list of Acovered@ positions and, therefore, under the doctrine of Aexpressio unius est exclusio alterius,@
QUESTION:
In the correspondence relating to your opinion request, you seek a determination as to the extent to which you would be prohibited from representing other persons or entities for compensation after you cease to be the staff director of the Commission on Long-Term Care in Florida. You represented to our staff that you would not be considered Agrandfathered-in,@
We are further advised that the Commission on Long-Term Care in Florida was created by proviso language contained in the 1994-95 General Appropriations Act, Chapter 94-357, Laws of Florida, '1A, Item 1417A. That language states that for administrative purposes, the Commission is assigned to the Joint Legislative Management Committee and that its 18 members are appointed by the Speaker of the House, the Senate President, and the Governor and also include several designated agency heads or their representatives. It is apparent to us that the Commission serves in an essentially ad hoc, advisory capacity, with its main purpose the preparation of a report for the Legislature on long-term care in Florida. We are further advised that the Commission=
(9)
(a) 1.
2.
a. "Employee"
(I)
(II)
(III)
(IV)
(VI)
c. "State agency"
4.
Before determining the extent to which you would be restricted from representing clients, we must first determine whether you are even an Aemployee@ for purposes of Section 112.313(9)(a)2.a. Reviewing each part of this sub-subparagraph sequentially, under I, your position, although in the legislative branch of government, is not considered Senior Management nor Select Exempt. Neither do you hold one of the positions listed under II or III.
The only remaining section that could refer to positions such as yours is in VI, which includes Aany person having the power normally conferred upon the positions referenced in this sub-subparagraph.@ Notwithstanding, we do not construe this language to include positions such as yours. Aside from notions of fairness and whether you were on notice that VI referred to you, we believe that the doctrine of Aexpressio unius est exclusio alterius@ (mention of one thing implies exclusion of another) should be applied to conclude that since the position of staff director to the Commission on Long-Term Care in Florida is not specifically listed in Section 112.313(9)(a)2.a., then you are not an Aemployee@ for purposes of the post-employment restrictions contained therein. Initially, we observe that the other positions referred to in the statute are clearly responsible positions of governmental authority in agencies that have ongoing regulatory or otherwise substantial authority to decide public policy. In contrast, whatever power has been conferred upon you as staff director to an advisory group cannot be the same type of Apower@ contemplated in VI. We also note that this conclusion is appropriate under the circumstances, where you accepted a temporary, time-limited position as staff director to an advisory commission, and it would seem unduly harsh to conclude that you would face post-employment restrictions under those circumstances. Further, even if we were to conclude that your position was covered, under the rationale of CEO 95-31, which we rendered to the Executive Director of the Advisory Council on Intergovernmental Relations, your Aagency@ would be the Commission on Long-Term Care in Florida, not the entire Florida Legislature. Where your agency ceases to exist, any restriction against lobbying the Commission would not extend to any other agency or agencies that assume the Commission=
Accordingly, under the circumstances presented, we find that you, as the staff director to the Commission on Long-Term Care in Florida, are not subject to the two-year Arevolving door@
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 7, 1996, and RENDERED
Chairman