LOBBYING RESTRICTIONS

APPLICATION OF THE IN-OFFICE LOBBYING BAN TO CITY MAYOR

To: Tim Marden, Mayor (Newberry)

SUMMARY:

In-office lobbying ban found in Article II, Section 8(f)(2), Florida Constitution, does not apply when an elected mayor is not principally employed for governmental affairs in his private capacity.

QUESTION:

May an elected mayor advocate for certain policies on behalf of his private employer before the federal government?

This question is answered as follows.

In your ethics inquiry, you indicate that you were recently elected to be the Mayor of Newberry, Florida. You state that during the election, concerns were raised because you had recently registered as a lobbyist of the federal government due to your work at the John Birch Society, your private employer.

Regarding your work in your private capacity, you indicate you are employed as the National Development Officer with the John Birch Society, which is a paid position. You state your primary job duties involve raising money for your employer through soliciting donations, business advertisements, and making arrangements with those who are including the John Birch Society in their estate plans. You indicate you also work on special projects and advancing the overall mission of your employer.

Separate from these job duties, you indicate you plan to go to Washington, D.C., once every other month to advocate for certain policies on behalf of the John Birch Society. Regarding the scope of your duties as they pertain to these trips, you note that you will be advocating for elected officials to adhere to the Constitution on various legislative matters, which includes advocating for anti-war and anti-central banking policies, as well as advocating for the withdrawal of the United States from the United Nations. Outside of the trips to Washington, D.C., you state you may also periodically send written correspondence or documentation to follow up on a visit.

You state you are the only registered lobbyist for your employer, but that you only registered as a lobbyist for transparency purposes. Specifically, you noted you did not feel that your interactions with public officials of the federal government rise to the level of a "traditional lobbyist," but, since it was free to register and increased transparency, your CEO agreed to have you register anyway.

Against this backdrop, you ask whether the work you do for your employer would violate the in-office lobbying ban found in Article II, Section 8(f)(2), Florida Constitution. Turning to the language of the in-office lobbying ban, Article II, Section 8(f)(2), Florida Constitution, states:

A public officer shall not lobby for compensation on issues of policy, appropriations, or procurement before the federal government, the legislature, any state government body or agency, or any political subdivision of this state, during his or her term of office.

The in-office lobbying ban prohibits public officers lobbying for compensation on issues of policy, appropriations, or procurement before the federal government, the legislature, any state government body or agency, or any political subdivision of the state during their term of office. Therefore, it must be determined whether you are a public officer subject to the ban and whether the conduct you have described in your inquiry amounts to lobbying for compensation.

The term "public officer" for purposes of the in-office lobbying ban is defined in Article II, Section 8(f)(1), Florida Constitution. This provision states:

For purposes of this subsection, the term "public officer" means a statewide elected officer, a member of the legislature, a county commissioner, a county officer pursuant to Article VIII or county charter, a school board member, a superintendent of schools, an elected municipal officer, an elected special district officer in a special district with ad valorem taxing authority, or a person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government.

You indicate you were recently elected to serve as the Mayor of Newberry, Florida. Given that the term "elected municipal officer" is included in the definition of "public officer" for purposes of the in-office lobbying ban, as an elected mayor of a municipality, the in-office lobbying ban is applicable to you.

Since you are a public officer subject to the in-office lobbying ban, we must now determine whether the conduct you have described in your inquiry amounts to "lobbying for compensation," as that is the conduct that Article II, Section 8(f)(2), Florida Constitution, prohibits during the course of a public officer's term of office.

The definition of the term "lobby for compensation" is found in Section 112.3121(12)(a)-(b), Florida Statutes. This provision states:

(12)(a) "Lobby for compensation" means being employed or contracting for compensation, for the purpose of lobbying, and includes being principally employed for governmental affairs to lobby on behalf of a person or governmental entity.

(b) The term "lobby for compensation" does not include any of the following:

1. A public officer carrying out the duties of his or her public office.

2. A public or private employee, including an officer of a private business, nonprofit entity, or governmental entity, acting in the normal course of his or her duties, unless he or she is principally employed for governmental affairs.

3. Advice or services to a governmental entity pursuant to a contractual obligation with the governmental entity.

4. Representation of a person on a legal claim cognizable in a court of law, in an administrative proceeding, or in front of an adjudicatory body, including representation during prelitigation offers, demands, and negotiations, but excluding representation on a claim bill pending in the Legislature.

5. Representation of a person in any proceeding on a complaint or other allegation that could lead to discipline or other adverse action against the person.

6. Representation of a person with respect to a subpoena or other legal process.

Relevant to your inquiry, Section 112.3121(12)(b)2., Florida Statutes, excludes from the definition of "lobby for compensation" instances where a public or private employee is acting in the normal course of his or her duties, unless he or she is principally employed for governmental affairs. Because the advocacy you will be engaged in during your trips to Washington, D.C., will be part of the normal course of your private job duties at the John Birch Society, we must determine whether you are "principally employed for governmental affairs" by your employer.

The term "principally employed for governmental affairs" is defined in Section 112.3121(15), Florida Statutes. Section 112.3121(15) states:

"Principally employed for governmental affairs" means that the principal or most significant responsibility of the employee is to oversee the employer's various relationships with governmental entities or representing the employer in its contacts with governmental entities.

In sum, the term "principally employed for governmental affairs" means that the most significant responsibility of the employee is to oversee the employer's various relationships with governmental entities or to represent the employer in its contacts with governmental entities. Here, you have indicated that your primary responsibility in your employment involves raising money for the organization through various means, including soliciting donations, business advertisements, and seeking the inclusion of your employer in people's estate plans. Regarding your representation of your employer in its contacts with governmental entities, you state that you will only be going on trips to Washington, D.C., once every other month, or six times per year. Based on these facts, therefore, it does not appear that your employment brings you into the definition of being "principally employed for governmental affairs," as your primary and most significant responsibilities with your employer involve fundraising, not representing your employer in its contacts with governmental entities.

Because you are not "principally employed for governmental affairs" in your private capacity, and because you would be acting in the normal course of your private job duties in taking trips to Washington, D.C., to advocate on behalf of your employer, it does not appear that the activities you will be engaged in as National Development Officer of the John Birch Society constitute "lobbying for compensation" as that term is defined in Section 112.3121(12), Florida Statutes. Therefore, the conduct you have described in your inquiry as it relates to your private employment will not violate the in-office lobbying ban found in Article II, Section 8(f)(2), Florida Constitution.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2025, and RENDERED this 11th day of June 2025.

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Luis M. Fusté, Chair