POST-OFFICEHOLDING RESTRICTIONS

FORMER DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION ATTORNEY REPRESENTING CLIENTS BEFORE
THE CONSTRUCTION INDUSTRY LICENSING BOARD AND
THE OFFICE OF GENERAL COUNSEL

To: Name withheld at person's request (Jacksonville)

SUMMARY:

Section 112.313(9)(a)4., Florida Statutes, will prohibit a former attorney with the Office of General Counsel for the Department of Business and Professional Regulation from representing a person or entity for compensation before the Department's Construction Industry Licensing Board and the Construction Industry Licensing Board Legal Unit of its Office of General Counsel for two years after vacating her position. Through the application of Section 112.316, Florida Statutes, the former attorney is not prohibited from engaging in such representations before other parts of the Office of General Counsel. Referenced are CEO 26-4, CEO 25-8, CEO 25-4, CEO 24-6, CEO 19-5, CEO 18-2, CEO 17-14, CEO 17-2, CEO 15-4, CEO 14-31, CEO 12-3, CEO 11-10, CEO 10-13, CEO 06-1, CEO 05-16, CEO 02-12, CEO 96-18, and CEO 95-14.

QUESTION:

Does Section 112.313(9)(a)4, Florida Statutes, only prohibit you, an attorney formerly employed in the Construction Industry Licensing Board Legal Unit of the Department of Business and Professional Regulation's Office of General Counsel, from representing persons or entities for compensation on matters before the Legal Unit or the Construction Industry Licensing Board itself for two years after leaving your position?

Your question is answered in the affirmative.

Through your letter of inquiry and correspondence with our staff, you bring this inquiry concerning how the post-employment prohibition of Section 112.313(9)(a)4., Florida Statutes, will apply to you, a former attorney with the Department of Business and Professional Regulation (DBPR). You inquire, first, whether the prohibition applies to you, and second, if it does, whether it will restrict you from representing clients for compensation before the entirety of DBPR's Office of the General Counsel, or only before those DBPR Boards and Units where you had specific responsibilities.

You state you were initially hired at DBPR in December 2019 to serve as an Assistant General Counsel, which was a Selected Exempt Service (SES) position within the Office of General Counsel. In June 2024, you began working on a remote, part-time schedule, and your job classification changed to that of an other-personal-services (OPS) position. Importantly, you indicate that as both a SES and OPS attorney, you exclusively served in the Office of General Counsel's Construction Industry Licensing Board Legal Unit. You state you were hired for a position specifically with that Unit, and remained there during the entirety of your public employment at DBPR, which lasted until you resigned on April 1, 2026.

As an attorney with the Construction Industry Licensing Board Legal Unit, you state your responsibilities only concerned matters being presented to DBPR's Construction Industry Licensing Board (the CILB). The CILB issues licenses and handles disciplinary matters related to the construction industry, including determining whether there is probable cause to send an administrative complaint or a licensing issue to the Division of Administrative Hearings (DOAH). While you were in an SES attorney position, you reviewed investigatory materials in CILB matters, prepared pleadings and settlement documents, presented matters to the CILB for probable cause hearings, and assisted with case progression when probable cause was found, which, in certain situations, involved prosecuting the matter at DOAH. Once you became an OPS employee, you indicate your responsibilities stayed the same, although your caseload was reduced.¹

As an attorney with the Construction Industry Licensing Board Legal Unit, you indicate your sphere of influence at DPBR was limited. The organizational chart of DPBR shows it has several sections, some of which contain smaller offices and divisions.² For example, DBPR houses not only the Office of General Counsel, but separate sections devoted to Professional Regulation and Business Regulation. The Professional Regulation and Business Regulation sections are further divided into smaller divisions, some of which contain boards that oversee specific professions, such as the CILB.³ From what you indicate, you had no involvement during your time at DBPR with anyone outside the CILB and the Construction Industry Licensing Board Legal Unit, as your work was "board-specific to CILB matters." You emphasize you did not interact with the attorneys or staff of the Professional Regulation or Business Regulation Sections, reported only to supervisors within your Legal Unit, and "did not participate in, advise on, supervise, or otherwise become involved in matters assigned to other [DBPR] boards or professional units." And while the deputy chiefs within your Legal Unit occasionally took on responsibilities involving other DBPR Boards,⁴ you were not involved in those matters or in the work of any other section of the Office of General Counsel.

Even within the Construction Industry Licensing Board Legal Unit, it appears your involvement with other attorneys in the Unit was minimal. You state that, when you were initially hired, there were approximately ten attorneys in the Legal Unit. During that time, you would "occasionally" discuss legal or procedural issues with the other attorneys, and would seek their perspective on "challenging matters." However, once you began working remotely in an OPS position in June 2024, you state your interactions with the other attorneys "decreased dramatically." You relate that for the nearly two-year period in which you were OPS, you communicated only with your direct supervisor (i..e, the deputy chief of the Legal Unit) and an administrative assistant. This was the posture in which you were working when you left public employment with DPBR in April 2026.

Since then, you have opened a private law firm, which now leads to your inquiry about whether you may consult and/or provide private representation to clients on professional licensing and regulatory matters at DBPR. You state you do not intend to "exclusively focus" in your private practice on matters involving DBPR, although you want to clarify whether it is possible for you to represent clients on matters before departmental boards, including but not limited to the CILB.

As previously indicated, your question concerns the application of the post-employment restriction in Section 112.313(9)(a)4, Florida Statutes,⁵ which states:

An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, may not 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.

In essence, Section 112.313(9)(a)4 places a two-year prohibition on a former agency employee representing persons or entities for compensation before the agency "with which he or she was employed."

The threshold issue here is whether Section 112.313(9)(a)4. even applies to you. The prohibition is very specific about its application, and pertains only to those who qualify as "employees" under the criteria described in the statute. The term "employee" is defined in Section 112.313(9)(a)2.a., Florida Statutes, to include the following:

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 Lottery.

*                              *                              *

(VI) Any person, including an other-personal-services employee, having the power normally conferred upon the positions referenced in this sub-subparagraph.

You indicate you were initially hired to serve in a SES position in December 2019. At that time, you would have qualified as an "employee" under the definition in Section 112.313(9)(a)2.a.(I), which extends the statute to those "holding a position in the Selected Exempt Service as defined in s. 110.402[.]" But you indicate that once you began working part-time in June 2024, your position was re-classified as OPS. You were still serving in that OPS position on the date that you left public employment. The question thus becomes whether you qualify under the criteria in Section 112.313(9)(a)2.a.(VI), which extends the definition of "employee" to only certain OPS positions, namely those who have "the power normally conferred upon the positions referenced in this sub-paragraph."

When applying this criteria in the past, we have analyzed whether the responsibilities of the OPS employees in question are comparable to any of the other positions identified in the statute. See CEO 25-8 (finding a State Attorney is not an "employee" under Section 112.313(9)(a) as they possess powers and responsibilities unique to that position) and CEO 14-31 (finding administrative law judges possess unique responsibilities and do not qualify as "employees"). Here, from what you indicate, your responsibilities as a part-time OPS attorney remained essentially the same as when you were serving in a SES attorney position. While your case load was reduced, and you had less occasion to appear before probable cause panels, your responsibilities did not change. Given your comparable duties as an OPS attorney and an SES attorney, we find you qualify as an "employee" under Section 112.313(9)a)2.a.(VI), and the two-year representation prohibition applies to you.

Of course, the prohibition only applies to "representation" for compensation. The term "represent," as used in the prohibition, is defined in Section 112.322(22), Florida Statutes, to include "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." This definition, which is very broad, prohibits most forms of contact between a former public employee and their "agency" during the two-year prohibition period. See CEO 25-4 and CEO 19-5, n.9.⁶

And for Section 112.313(9)(a)4. to apply, such "representation" must be before the "agency" where you were formerly employed. This is truly the crux of your inquiry, as we must consider, given your unique and limited responsibilities at DBPR, whether your "agency" for purposes of the statutory prohibition encompasses the entirety of DBPR or can be confined to particular offices or units within it. Determining your "agency" is central to the purpose of Section 112.313(9)(a)4., which is to prevent former public officers and employees from influence peddling, meaning using their public positions to create opportunities for personal profit after they leave public employment. See CEO 26-4 and CEO 24-6.

The definition of the term "agency" encompasses units of government both large and small, including "any department, division, bureau, commission, authority, or political subdivision of this state … ." See Section 112.312(22), Florida Statutes. Since this definition identifies smaller government units, we have found that a former State employee's "agency" for purposes of Section 112.313(9)(a)4. is not necessarily the entire department where he or she was employed, but rather the lowest departmental unit or units where the employee's influence might reasonably have been considered to extend. See CEO 18-2 and CEO 11-10. Under this reasoning, when a state department has different divisions, it is the bureaus within those divisions—not the overall department or the divisions themselves—that may be considered the employee's "agency." See CEO 18-2 and CEO 15-4.

An example illustrating this in the context of DBPR occurred in CEO 95-14, where an attorney employed in DBPR's Division of Regulation inquired what their "agency" would be for purposes of Section 112.313(9)(a)4. We found the employee's "agency" would be the Legal Section of the Division of Regulation—which we stated was analogous to a bureau—as well as the CILB, where the attorney presented cases. Central to our reasoning in that opinion was that the attorney shared a strong "affiliation" with the other attorneys in the Legal Section, which led to the conclusion that his influence extended throughout the Section. See also CEO 17-14 (finding a former DBPR employee's "agency" to be the Division of Alcoholic Beverages and Tobacco as well as the Division of Pari-Mutuel Wagering, as he had influence in both Divisions through his service as a Division Director or Deputy Director).⁷

Turning to your employment at DBPR, from what you indicate, your responsibilities did not involve the entire Department. Rather, you were employed within the Office of General Counsel and presented matters exclusively to the CILB. Clearly, the CILB would be considered your "agency" for purposes of Section 112.313(9)(a)4. Your primary responsibilities were to present matters to that Board, and you presumably interacted with its members and staff during your public employment. The more difficult question is whether your "agency" also encompasses the entirety of the Office of General Counsel. There are several reasons why, at first blush, your "agency" could extend to the entire Office of General Counsel:

First, the organizational chart for DBPR does not decentralize the Office of General Counsel into smaller units. This contrasts with how the chart treats its other DBPR sections, such as Professional Regulation and Business Regulation, each of which are broken into individual divisions and offices, as previously discussed. This implies DBPR treats the Office of General Counsel as a single unit.

Second, when determining an employee's "agency," certain indicators have been who has the power to hire or fire the employee, as well as who controls the employee's work. See Loebig v. Florida Commission on Ethics, 355 So. 3d 527, 532 (Fla. 1st DCA 2023). Here, from what you indicate, the Office of General Counsel possesses the ability to hire and fire someone in your former position, and supervising attorneys within the Office directed and reviewed your work.⁸

Third, in the past, we have been reluctant to find former attorneys who were either housed in an office of general counsel—or frequently interacted with an office of general counsel—should be permitted to represent clients in matters involving that office within the two-year prohibition period. Our opinions in this regard presume the former attorneys could use their personal influence and affiliation with the attorneys employed in the general counsel's office for the benefit of their private clients. See CEO 17-2 (finding Section 112.313(9)(a)4. prohibited a former Department of Revenue attorney from representing clients in matters involving the Department's Office of General Counsel as he handled requests and submitted work-product to that Office); CEO 02-12, Question 5 (finding Section 112.313(9)(a)4. prohibited a former attorney employed by the Office of General Counsel for the Agency for Health Care Administration (AHCA) from representing clients on maters where the office would be involved, even if the matters were unrelated to his area of specialty while at AHCA); and CEO 96-18 (finding Section 112.313(9)(a)4. prohibited a former staff attorney with AHCA's Office of the General Counsel from bringing public records challenges where the Office would be handling the defense).

Based on these reasons, your "agency" in a strict and mechanical sense would encompass not just the CILB, but also the entirety of the Office of General Counsel. However, despite these reasons, we acknowledge that finding your "agency" for purposes of Section 112.313(9)(a)4. to include the entire Office of General Counsel would not accurately reflect your service at DPBR. Unlike the attorneys in CEO 17-2, CEO 02-12, and CEO 96-18, your responsibilities were confined to a particular unit within the Office of General Counsel—the Construction Industry Licensing Board Legal Unit—and you had no contact with attorneys or staff outside that Unit. You state you were hired by attorneys within this Unit, reported only to them, and your work was not reviewed by other parts of the Office of General Counsel. Nor, from what you indicate, did you have any contact or interaction with attorneys outside your Legal Unit. This appears especially true during the time when you were a remote OPS employee, which spanned nearly the entire two years leading up to your resignation, as during that period you interacted with only two Office of General Counsel employees—your direct supervisor and an administrative assistant. Considering this, it seems that finding your "agency' to encompass the entire Office of General Counsel, simply because you occupied an attorney position in one of its units, would not accurately reflect your employment.

And while we have not had previous occasion to consider whether DBPR's Office of General Counsel can be broken into smaller units to determine one's "agency" for purposes of Section 112.313(9)(a)4., we may take this approach when specific circumstances warrant it. In similar scenarios involving other state departments, we have broken larger prosecutorial units into smaller components. For example, CEO 18-2 dealt with an attorney for the Department of Health who inquired how the prohibition in Section 112.313(9)(a)4. would apply to him. The attorney was employed in the Prosecution Services Unit of the Department's Medical Quality Assurance Division. Despite the fact that the Prosecution Services Unit was not specifically referred to as a bureau within the materials provided, we found it was appropriate to treat the Unit as the attorney's "agency" for purposes of Section 112.313(9)(a)4. It was clear that the attorney had limited responsibilities that were entirely confined to the Prosecution Services Unit, and, for this reason, we concluded the Unit—not the entire Medical Quality Assurance Division—should be considered as his "agency." Similarly, here, while the Office of General Counsel appears to be its own stand-alone unit within DBPR, which is what DBPR's organizational chart reflects, treating the entire Office as your "agency" does not seem appropriate, given the limited nature of your responsibilities and influence.

In the past, when we have found that strictly applying a post-employment prohibition would be inappropriate in individual circumstances, we have used Section 112.316, Florida Statutes, to temper a literal reading of the statute at issue. Section 112.316 states:

CONSTRUCTION.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency, or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

Section 112.316 can negate a conflict that might otherwise exist under a post-employment statute when specific factual circumstances show there is no actual risk of a breach of public trust. See CEO 26-4 and CEO 05-16 (using Section 112.316 to negate the mechanical application of the post-employment prohibitions in Section 112.3185(3) and 112.3185(4), Florida Statutes); and see CEO 12-3 (using Section 112.316 to negate the application of the postemployment prohibition for local officers in Section 112.313(14), Florida Statutes).

Here, given your unique circumstances, we apply Section 112.316 to find that Section 112.313(9)(a)4. will not be violated if you represent clients for compensation within the two-year prohibition period in matters before DBPR or its Office of General Counsel, so long as you do not represent clients before the CILB or the Construction Industry Licensing Board Legal Unit. This result is tailored to your unique circumstances, and does not necessarily mean that all attorneys employed by an Office of General Counsel will have a similar result. In your case, though, it seems appropriate.

We note this finding still reflects the spirit of Section 112.313(9)(a)4. As explained above, the statute is designed to prevent influence peddling. Finding that you will not be able during the two-year prohibition period to represent clients before the CILB and the Construction Industry Licensing Board Legal Unit effectively means you will not be able to contact or communicate on a client's behalf with those attorneys and staff with whom you were most closely affiliated. Extending the prohibition to other parts of the Office of General Counsel or DPBR would not reflect the purpose of the statute, as you had no influence outside the CILB or your Legal Unit. In short, under your unique set of facts, finding that the two-year prohibition in Section 112.313(9)(a)4., extends only to representing clients for compensation before the CILB and the Construction Industry Licensing Board Unit seems to serve the intent of the statute while also reflecting the reality of your employment at DPBR.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 24, 2026, and RENDERED this 29th day of July 2026.

____________________________________

Jon M. Philipson, Chair

^[1]You do indicate your reduced caseload as an OPS attorney meant you seldom had to appear at probable cause hearings and no longer supervised a law clerk, although it seems your duties otherwise remained the same.