CEO 00-1 -- February 2, 2000
POST-EMPLOYMENT RESTRICTIONS
APPLICABILITY OF TWO-YEAR "REVOLVING DOOR" RESTRICTION TO EXECUTIVE DIRECTOR OF STATE DEPARTMENT
TO: Mr. L. H. Fuchs, Tallahassee
SUMMARY:
The former Executive Director of the State Department of Revenue is subject to the two-year "revolving door" prohibition of Section 112.313(9)(a)4, Florida Statutes, against representing clients before the Department. Despite the fact that he was employed in a Senior Management System position with the Department of Banking and Finance prior to and after July 1, 1989, he would not be "grandfathered-in" as to representations before the Department of Revenue under Section 112.313(9)(a)6, as his employment with the Department of Revenue began after July 1, 1989.
QUESTION:
Are you, formerly the Executive Director of the Department of Revenue, subject to the two-year "revolving door" prohibition of Section 112.313(9)(a), Florida Statutes, against representing clients before the Department?
Under the circumstances presented, your question is answered in the affirmative.
In your letter of inquiry, you advise that you recently have retired from serving as the Executive Director of the Florida Department of Revenue. You also advise that you have been in either the Select Exempt Service or the Senior Management Service continuously since September 1983 and, particularly, that you have had no break in State employment since July 1, 1989. Further, you advise that you were Deputy Comptroller with the Department of Banking and Finance when the two-year restriction was passed, in 1989. Subsequently, you moved from the Department of Banking and Finance to the Department of Revenue, changing from one management position to the other.
Section 112.313(9)(a), Florida Statutes (1999), provides as follows:
POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--
(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.
2. As used in this paragraph:
a. 'Employee' means:
(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.
(II) The Auditor General, the Sergeant at Arms and Secretary of the Senate, and the Sergeant at Arms and Clerk of the House of Representatives.
(III) The executive director of the Legislative Committee on Intergovernmental Relations and the executive director and deputy executive director of the Commission on Ethics.
(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title.
(V) The Chancellor and Vice Chancellors of the State University System; the general counsel to the Board of Regents; and the president, vice presidents, and deans of each state university.
(VI) Any person having the power normally conferred upon the positions referenced in this sub‑subparagraph.
b. 'Appointed state officer' means any member of an appointive board, commission, committee, council, or authority of the executive or legislative branch of state government whose powers, jurisdiction, and authority are not solely advisory and include the final determination or adjudication of any personal or property rights, duties, or obligations, other than those relative to its internal operations.
c. 'State agency' means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control.
3. No member of the Legislature, appointed state officer, or statewide elected officer shall personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or member for a period of 2 years following vacation of office. No member of the Legislature shall personally represent another person or entity for compensation during his or her term of office before any state agency other than judicial tribunals or in settlement negotiations after the filing of a lawsuit.
4. No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.
5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct.
6. This paragraph is not applicable to:
a. A person employed by the Legislature or other agency prior to July 1, 1989;
b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;
c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;
d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or
e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. [E.S.][1]
The position of Executive Director of the Department is exempt from the Career Service System, under Section 110.205(2)(I), Florida Statutes, and is included in the Senior Management System by Section 110.402(2), Florida Statutes. Clearly, therefore, you meet the definition of "employee" in Section 112.313(9)(a)2.a.(I) and are included in the two-year prohibition of Section 112.313(9)(a)4. The only remaining question is whether your employment history brings you within one of the "grandfather" provisions of Section 112.313(9)(a)6.
We have rendered four prior opinions interpreting Section 112.313(9)(a)6. In CEO 91-59, we concluded that a former Program Specialist with the State Board of Independent Postsecondary Vocational, Technical, Trade and Business Schools would not be prohibited from representing another person or entity for compensation before that Board, as he was employed in his position as Program Specialist for over five years through July 1, 1989.
In CEO 94-20, we concluded that an employee of the Legislature, who was employed with the Legislature and then a State department in a Selected Exempt Service position prior to July 1, 1989 and who was an employee of the Legislature on July 1, 1989 but subsequently left that employment, would be subject to the two-year "revolving door" prohibition of Section 112.313(9)(a)4, Florida Statutes, against representing clients before the Legislature if she were to become a Staff Director of a committee of the Legislature and then to leave employment with the Legislature. In our view, neither her legislative employment prior to July 1, 1989, her Selected Exempt Service employment prior to July 1, 1989, nor her legislative employment on July 1, 1989 exempted her, as she had left employment with the Legislature after July 1, 1989 and then returned to employment there. We stated in CEO 94-20:
Section 112.313(9) was enacted in Chapter 89-380, Laws of Florida, and formerly was codified at Section 112.3141, Florida Statutes. That enactment had its origins in the Sunshine Amendment, Article II, Section 8(e), Florida Constitution, which contains a similar two-year 'revolving door' prohibition against members of the Legislature and specifies that '[s]imilar restrictions on other public officers and employees may be established by law.' The Florida Supreme Court has utilized an address given by the Sunshine Amendment's author, Governor Askew, to interpret another provision of the Sunshine Amendment in Williams v. Smith, 360 So.2d 417 (Fla. 1978). In an address to the Legislature, Governor Askew's remarks included the following expression of intent:
I strongly urge the Legislature to adopt comprehensive legislation to ensure that public officers and high ranking state employees do not use their public service careers, and contacts developed in that capacity, to later enrich themselves at the expense of the public.
In order to avoid the unintended consequences described above and effectuate restricting 'high ranking state employees' from certain postemployment activities, we are of the opinion that the exemption in (9)(a)6 must relate to the employment that gives rise to the potential 'revolving door' prohibition. To interpret the language of the exemption provision to be applicable to any person employed in any capacity by the Legislature or any agency[[2]] prior to July 1, 1989, regardless of whether there is any relationship between that employment and the subsequent 'high ranking' employment, would base the exemption on fortuitous circumstances and possibly exempt out more persons than are subject to the prohibition.
CEO 94-20 was appealed to the First District Court of Appeal,[[3]] which affirmed the opinion by a "Per Curiam Affirmed" decision, as Anderson v. Commission on Ethics, 1st DCA Case No. 94-2145, March 13, 1995.
In CEO 94-34, we advised that an employee of the Agency for Health Care Administration, who was employed with the Department of Health and Rehabilitative Services in a Senior Management Service position on and prior to July 1, 1989, who was continuously employed with HRS and AHCA since that time, and whose position was transferred to the AHCA when that agency was created, would be exempt from the two-year prohibition of Section 112.313(9)(a)4 against representing clients before the AHCA if he were to leave his current Selected Exempt Service AHCA employment for the private sector. Finally, in CEO 95-31 we found under the specific factual circumstances presented in that opinion that the executive director of the Advisory Council on Intergovernmental Relations was "grandfathered-in" under the revolving door prohibition since she had been continuously employed by the Council since October 1984.
You argue that, under the plain meaning of the statute, you were "employed by the Legislature or other agency prior to July 1, 1989" and therefore are grandfathered-in under Section 112.313(9)(a)6.a. You observe that the prohibition in (9)(a)4. is phrased in terms of representations before "the agency with which he was employed," while the grandfathering provision of (9)(a)6.a. is phrased in terms of employment by the Legislature "or other agency." Thus, you argue, the Legislature deliberately chose to use different terminology in these sentences when they certainly could have mirrored the phrasing of Section 4 and that the conclusion that must be drawn is that they wanted a difference and that they utilized the broad statements of "other agency" and "an agency" rather than the restrictive "the agency" to create the differentiation.
In CEO 94-20, we considered the argument that a literal reading of the statute was intended, but we concluded that a literal reading of Section 112.313(9)(a)6. would create
a personal, lifetime exemption from the 'revolving door' prohibitions of paragraph (9)(a), an exemption that applies regardless of when in the future one becomes employed in a 'defined' position, regardless of when in the past one was employed by the Legislature or other agency (so long as it was prior to July 1, 1989), regardless of whether one's future employment is with the same agency as one's prior employment, and regardless of how often one passes through the revolving door between agency employment and private representation of clients before the same agency.
As we expressed in CEO 94-20, because of this result and the other consequences of a literal reading of Section 112.313(9)(a)6., generally accepted principles of statutory construction indicated that we should read the grandfathering provisions to relate to the employment that gives rise to the potential "revolving door" prohibition. We remain persuaded that this construction of the statute is appropriate and that your employment with the Department of Banking and Finance, prior to and on July 1, 1989, does not exempt you from the prohibition against appearing before the Department of Revenue.
You also refer to the portion of CEO 94-20 that addresses the legislative staff analysis of the 1991 bill that amended the statute, and argue that the staff analysis is indicative of legislative intent. However, as we noted in CEO 94-20,
we are not persuaded that the after-the-fact insertion of wording in a 1991 staff analysis is determinative of legislative intent with respect to the 1989 statutory version of post-employment restrictions for certain State employees.
You also argue that the prohibition is in the nature of a covenant not to compete and that, because such covenants are in derogation of common law, they are strictly construed against the alleged restraint. However, in our view as expressed in CEO 94-20, the prohibition is simply an implementation of the constitutional provision found in Article II, Section 8(e), Florida Constitution, and the language we are interpreting here is that of an exception to the prohibition; under general rules of statutory construction, exceptions are to be construed narrowly.
Finally, you argue that the facts of your situation and those of CEO 94-20 are different, in that, unlike the employee in CEO 94-20, you have had no break in the type of State employment since July 1, 1989, having been in the Select Exempt/Senior Management Service continuously since September 1983. While you moved from the Department of Banking and Finance to the Department of Revenue within that time, you note, the change was from one management position to another. This is the normal method of advancement in the SES / SMS service, you observe, and you note that you were Deputy Comptroller when the two-year restriction was passed, having entered into that position in the SES / SMS service under the presumption that advancement is regularly achieved through interagency promotion. You argue that you could not have become the elected Comptroller and that the only other internal "slot," Assistant Comptroller, was filled with no expectation of a vacancy. If the rationale of CEO 94-20 were applied to your situation, you argue, it would impose an artificial barrier which did not exist when you entered SES / SMS service and would interfere with your right to advance in position and responsibility within the State's management structure. Therefore, in your view, this burden or obstruction would be the very reason why the Legislature would include a "grandfather" provision in the statute.
In our view, the Legislature chose to describe "employees" who are subject to the two-year restriction by referring to positions in the Senior Management Service and the Selected Exempt Service as a simple way to describe the "high ranking state employees" Governor Askew had urged to be brought under the limitation. The fact that one held a position that was classified in either personnel system is relevant to determining whether one is covered by the prohibition, but is not relevant to determining whether one is grandfathered-in. The Senior Management Service[[4]] and Selected Exempt Service[[5]] have been established as systems of personnel administration which serve to set compensation and other terms of employment; they are not separate agencies or employers.
As we concluded in CEO 94-20, the exemption under 112.313(9)(a)6.a. and b. relates to employment with a specific agency. Therefore, when you left employment with the Department of Banking and Finance after July 1, 1989 you were grandfathered-in and therefore could have appeared before that Department without having to wait two years. When you accepted employment with the Department of Revenue after July 1, 1989, however, you began employment with a different agency; the fact that you were continuously employed with the State did not bring you under the terms of the exemption.
Accordingly, under the circumstances presented we find that, as the former Executive Director of the Department of Revenue, you are subject to the two-year "revolving door" prohibition of Section 112.313(9), Florida Statutes, against representing clients before the Department and that you are not "grandfathered-in" under Section 112.313(9)(a)6.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 27, 2000 and RENDERED this 2nd day of February, 1999.
__________________________
Peter M. Dunbar
Chair
[1]This statute was adopted first in 1989, when it was codified as Section 112.3141(1), Florida Statutes (1989). Chapter 89-380, Laws of Florida, eff. July 1, 1989. In 1991, the statute was transferred to Section 112.313(9), Florida Statutes, by Chapter 91-85, Laws of Florida. Chapter 94-277, Laws of Florida (eff. Jan. 1, 1995), amended Sec. 112.313(9)(a) to include appointed state officers, SUS employees, and PSC employees. In addition, the 1994 amendments rewrote 112.313(9)(a)6 to add the categories that now appear as 6.b., 6.c., and 6.e.
[2]We note that the term "agency" is not defined in Sec. 112.313(9)(a), but is defined in Sec. 112.312(2), where it includes not only entities of State government, but also local government entities.
[3]Sec. 112.322(3)(b), F.S., provides that our opinions are binding, and Sec. 112.3241, F.S., provides that adverse opinions are subject to review by the district courts of appeal.
[4]Sec. 110.402(1), F.S., provides:
The Senior Management Service is created as a separate system of personnel administration for positions in the executive branch the duties and responsibilities of which are primarily and essentially policymaking or managerial in nature.
[5]Sec. 110.602, F.S., provides in part:
The Selected Exempt Service is created as a separate system of personnel administration for select exempt positions. Such positions shall include, and shall be limited to, those positions which are exempt from the Career Service System pursuant to s. 110.205(2) and (5) and for which the salaries and benefits are set by the department in accordance with the rules of the Selected Exempt Service. The department shall designate all positions included in the Selected Exempt Service as either managerial/policy-making, professional, or nonmanagerial/nonpolicymaking.