POST-OFFICEHOLDING RESTRICTIONS

FORMER CITY COUNCIL MEMBERS EMPLOYED BY SAME CITY
WITHIN TWO YEARS OF VACATING PUBLIC OFFICE

To: Jason R. Gabriel, General Counsel, and Lawsikia Hodges, Deputy General Counsel (Jacksonville)

SUMMARY:

Neither Section 112.313(7)(a), nor Section 112.313(10)(a), Florida Statutes, would prohibit Jacksonville City Council members from applying for an employment position in the City's executive branch, with such employment beginning after the City Council member's term has expired. Section 112.313(14), Florida Statutes, would prohibit former members from "representing" executive branch departments before the City Council within two years of leaving the City Council. CEO 81-57, CEO 90-4, CEO 91-49, CEO 93-14, CEO 95-14, CEO 02-12, CEO 05-4, CEO 09-4, CEO 12-3, CEO 13-10, CEO 16-15, and CEO 18-2 are referenced. ¹

QUESTION 1:

Would a prohibited conflict of interest be created under Section 112.313(7)(a) or 112.313(10)(a), Florida Statutes, were members of the City Council to apply for public employment with the City's executive branch, with the employment to begin after their term of office has expired?

This question is answered in the negative.

In your letter of inquiry and conversations with our staff, you state you serve as General Counsel and Deputy General Counsel, respectively, for the City of Jacksonville, and have been authorized to seek this opinion on behalf of certain members of the Jacksonville City Council (City Council or Council).² You relate that the Council members at issue were elected to the City Council in 2011 and re-elected in 2015. You further state that their terms as Council members expire on July 1, 2019, and that they have each expressed an interest in applying for employment positions within the City's executive branch. You relate that if hired their employment would not begin until after their City Council term expires.

Pursuant to its Charter, Jacksonville is a consolidated government having powers divided amongst the legislative, executive, and judicial branches of the consolidated government.³ You state that under consolidated government, the City exists as one single unitary body politic and corporate, or political subdivision, which includes all elected officials, the legislative branch, and all executive branch departments, boards, and commissions established by the City Charter or by the City Council.⁴ Pursuant to Section 5 of the City Charter, the City Council is vested with all legislative powers within the consolidated government, including but not limited to the authority to pass ordinances, approve the budget for the consolidated government and independent agencies, levy taxes, and confirm appointments to authorities and advisory boards, as well as executive department directors and chiefs.

Section 6 of the City Charter provides that the Mayor is the chief executive officer of the executive branch. You relate that within the executive branch the City has several departments (such as Planning and Development, Public Works, Neighborhoods, Finance and Administration, etc.) as well as boards and commissions. The prospective employment opportunities being considered by the City Council members involve positions in executive branch departments (such as department directors, chiefs, and departmental staff) or boards. You state that all executive department employees, including department directors and chiefs, report to the City's chief administrative officer, who reports directly to the mayor.⁵ You state that executive department employees, especially department directors and chiefs, often interface with members of the City Council on various governmental matters, including executive department budgets, both during and outside of Council meetings.

Sections 112.313(7)(a) and 112.313(10)(a), Florida Statutes, provide:

CONFLICTING EMPLOYMENT OR CONTRACTUAL RELATIONSHIP.—No public officer . . . shall have or hold any employment or contractual relationship with any business entity or any agency which is subject to the regulation of, or is doing business with, an agency of which he or she is an officer or employee . . . ; nor shall any officer or employee of an agency have or hold any employment or contractual relationship that will create a continuing or frequently recurring conflict between his or her private interests and the performance of his or her public duties or that would impede the full and faithful discharge of his or her public duties. [Section 112.313(7)(a), Florida Statutes.]

EMPLOYEES HOLDING OFFICE.—No employee of a state agency or of a county, municipality, special taxing district, or other political subdivision of the state shall hold office as a member of the governing board, council, commission, or authority, by whatever name known, which is his or her employer while, at the same time, continuing as an employee of such employer. [Section 112.313(10)(a), Florida Statutes.]

Section 112.313(7)(a), Florida Statutes, prohibits a public officer from having certain employment or contractual relationships. See, for example, CEO 12-3 and CEO 13-10. In the instant matter, the Council members have indicated that, if selected for an executive branch employment position, they do not intend to begin any such employment with the City until after their term has expired (until after the member ceases to be a public officer). Thus, we find that the prospective employment would present no prohibited conflict of interest for the members under Section 112.313(7)(a).

Section 112.313(10)(a), Florida Statutes, prohibits one from holding office on a board that is, at the same time, his or her employer. However, because the facts in the instant matter indicate that any potential executive branch employment position, should the respective member obtain it, would not overlap in time with their service on the City Council, we find that their application for, possible offer of employment with, or employment with the City would not be prohibited by Section 112.313(10)(a). See CEO 12-3.

Question 1 is answered accordingly.

QUESTION 2:

Would Section 112.313(14), Florida Statutes, prohibit former City Council members from "representing" the executive branch before the City Council within two years of leaving the City Council?

This question is answered in the affirmative.

Section 112.313(14), Florida Statutes, provides:

LOBBYING BY FORMER LOCAL OFFICERS; PROHIBITION.—A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the government body or agency of which the person was an officer for a period of 2 years after vacating that office. For purposes of this subsection:

(a) The "government body or agency" of a member of a board of county commissioners consists of the commission, the chief administrative officer or employee of the county, and their immediate support staff.

(b) The "government body or agency" of any other county elected officer is the office or department headed by that officer, including all subordinate employees.

(c) The "government body or agency" of an elected municipal officer consists of the governing body of the municipality, the chief administrative officer or employee of the municipality, and their immediate support staff.

(d) The "government body or agency" of an elected special district officer is the special district.

(e) The "government body or agency" of an elected school district officer is the school district.

Section 112.313(14), Florida Statutes, places a two-year restriction on for-compensation representations by certain former local officers before their former government body or agency. The language mirrors the prohibition placed by Section 112.313(9), Florida Statutes, on various state officers and employees, and the prohibition placed by Article II, Section 8, Florida Constitution, on members of the Legislature.

In CEO 91-49, we stated:

As we noted in CEO 81-57, the post-officeholding provision in the Sunshine Amendment, Article II, Section 8(e), Florida Constitution, was intended to prevent influence peddling and the use of public office to create opportunities for personal profit once officials leave office. We believe this also to have been the Legislature's intent in extending the prohibition to apply to post-employment situations by the enactment of Section 112.3141(1)(d), Florida Statutes.⁶

In other advisory opinions we have noted the additional purpose of precluding the appearance of impropriety by preventing public officials from exploiting the special knowledge or influence gained from their public position for private gain after leaving that position, and to restrict interactions between a former officer or employee and his or her former colleagues. See CEO 93-14, CEO 95-14, CEO 02-12, CEO 05-4, and CEO 18-2.

Section 112.313(14)(c) defines the "government body or agency" of an elected municipal officer, as the City Council, the City's chief administrative officer, and the "immediate support staff" of the City Council and the chief administrative officer. In accordance with our prior opinions, the City Council member would be prohibited from personally representing another person or entity for compensation before the City Council (including individual Council members or the City Council as a whole), as well as the City's chief administrative officer, and the "immediate support staff" of the City Council and the chief administrative officer.

Although we have considered the parameters of Section 112.313(14) in the context of opinions involving prospective post-public-office employment with private entities, including limited liability companies, non-profit organizations, and a school district direct support organization, we have not previously considered facts, as here, involving the application of this statute to employment opportunities existing within the same government in which one held an elected office. See CEO 05-4, CEO 12-3, CEO 13-10, and CEO 16-15. Under the situation presented, were the former City Council members to be employed by the executive branch of the City, they would be doing so in a paid capacity (i.e., "for compensation") within two years of vacating public office. Thus, the matter at issue herein is whether the term "another person or entity" contained in Section 112.313(14) would prohibit the representation of a department of the executive branch before the legislative branch (City Council) of the same City.

In interpreting the language and extent of Section 112.313(14), Florida Statutes, the Commission has relied upon the extensive analysis of the similar post-officeholding restriction contained in Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3, Florida Statutes, which provides:

3.a. 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.

b. For a period of 2 years following vacation of office, a former member of the Legislature may not act as a lobbyist for compensation before an executive branch agency, agency official, or employee. . . [emphasis added]

There, we have found that the term "another person or entity" within the prohibition includes the representation of both public and private sector entities. In CEO 09-4 we found that the post-officeholding prohibition in Section 112.313(9)(a)3 prohibited a former member of the House of Representatives serving as a community college president from representing, for two years, his public employer before the Legislature. Critical to our finding that the phrase "another person or entity" would include both private and governmental entities was our acknowledgment that "public agencies represent a variety of interests, some of which compete with the interests of other public entities for the Legislature's attention." See also CEO 90-4 (wherein we advised that a former member of the Florida House of Representatives who served as General Counsel to the Governor would be prohibited for two years from representing the Governor before the Legislature with certain limited exceptions).

In accordance with these opinions, in analyzing the analogous prohibition contained in Section 112.313(14) applicable to elected public officers on the political subdivision level, the Commission has found that the term "another person or entity" includes the representation of any "legal person or entity distinct from, or not synonymous with, your natural self or your natural person." CEO 13-10. Most recently, in CEO 16-15, we explained that pursuant to this definition, Section 112.313(14) would prohibit a former county commissioner from representing an array of clients before the county commission, for two years after leaving public office, including both for-profit and non-profit entities, as these entities constituted "legal persons or entities separate and distinct from you." We further explained that the prohibition applies even if the member's employer "is a non-profit organization or a consultant for another entity, as the statute does not distinguish between different types of clients." See also CEO 12-3.

In the instant matter, counsel for the Requestors of this opinion assert that the consolidated government, including all executive departments, executive administrative boards, and the City Council, are all part of the same political subdivision entity known as the City of Jacksonville. As such, they contend that each of the former City Council members, if employed by the executive branch, would not be representing "another person or entity" under Section 112.313(14). Moreover, they contend that because the employment positions would be in the City's executive branch (e.g., executive department or executive administrative board), which is within the same political subdivision as the City Council, the former Council members would not be in a position to exploit special knowledge gained by virtue of the Council members' former public office. They assert that the executive and legislative branches of government in Jacksonville ultimately work hand-in-hand to facilitate the unitary interests of the City. They further contend that it is disputable whether the former Council members would even be "representing" the executive branch under these facts in the context of Section 112.313(14). They state that, as defined in Section 112.312(22), Florida Statutes, "represents" means "actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or 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." They argue that the definition of the term "represent" is limited to the context of a client relationship which does not include or encompass public employment by a governmental entity such as the executive branch of City government.

The arguments of the Requestors represents a departure from this Commission's past applications of the post-officeholding restrictions contained in Section 112.313(14) and would require us to construe the term "another person or entity" so as to exempt from this prohibition representations of governmental entities located within the same political subdivision or government. Although we have no doubt that the members here are merely trying to continue their career of public service in furtherance of the City's interests, we are not persuaded by the assertion that the interests of the respective departments and boards contained within the executive branch are entirely unified with those of the City Council. The City Charter creates a system wherein the separate executive branch departments and boards (among others) annually develop a budget proposal which is initially submitted to the Mayor for ultimate consideration by the City Council. The City Council then exercises all fiscal responsibilities for adoption of the budget including approval of all departmental appropriations. We recognize that executive branch departments and boards within the City represent a variety of interests, some of which may ultimately compete for governmental resources. For example, while one department may seek the inclusion of a particular appropriation within the annual budget, other departments, or the City Council itself, may not feel that such an appropriation is in the best interests of the City. The Requestors acknowledge that during the budgetary process, Council members are "constantly being informed by executive branch employees" on department budget concerns. If this Commission were to adopt the interpretation of Section 112.313(14) propounded by the Requestors, we could easily foresee a former City Council member employed by the executive branch, within two years of leaving public office, seeking to capitalize upon their influence, expertise, and contacts in legislative matters gained through their public service thereby giving them a competitive advantage in the procurement of public resources on behalf of their respective department. We remain convinced that such opportunities for undue influence during the two-year period immediately following an elected official's public service continue to exist within both the private and public sectors.⁷

Therefore, we find here that the members would be prohibited from representing persons or entities (including departments of the executive branch) before their former agency, the City Council (including individual Council members or the City Council as a whole), as well as the chief administrative officer, and the "immediate support staff" of the City Council and the chief administrative officer, for two years after vacating public office.

Question 2 is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 12, 2019, and RENDERED this 17th day of April, 2019.

____________________________________

Guy W. Norris, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]Pursuant to Section 5 of the City Charter the City Council is comprised of 14 district members and 5 at-large members.

^[3]See Section 1 of the City Charter. See also Section 4.01 of the City Charter which provides: "All powers and duties of the consolidated government which are legislative in nature shall be exercised and performed by the council. All powers and duties which are executive in nature shall be exercised or performed by the mayor or such other executive officer of the consolidated government as the mayor may designate, except as otherwise specifically provided herein. All powers and duties of the consolidated government which are judicial in nature shall be exercised and performed by the circuit court of the fourth judicial circuit of Florida . . . ."

^[4]The City is also served by several independent agencies (i.e., JEA [formerly known as Jacksonville Electric Authority], Jacksonville Port Authority, Jacksonville Airport Authority, Jacksonville Housing Authority, Jacksonville Housing Finance Authority, Duval County School Board). This opinion does not analyze or address the application of Section 112.313(7)(a), 112.313(10)(a), or Section 112.313(14), Florida Statutes, in the context of employment with, or representation of, any independent agency.

^[5]Section 6.04 of the City Charter sets forth the powers and duties of the Mayor and provides that the "mayor shall appoint the directors and authorized deputy directors of each department and the chief of each division within each department, subject to confirmation by the council, and they shall serve at the pleasure of the mayor."

^[6]This statute was adopted first in 1989, when it was codified as Section 112.3141(1), Florida Statutes (1989). See 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.

^[7]We further note that while the definition of "represent" contains "client," the prohibition itself is anchored in "another person or entity" and is not limited to "clients."