CONSTITUTIONAL REPRESENTATION RESTRICTIONS FOR STATE LEGISLATORS

APPLICATION OF THE CONSTITUTIONAL IN-OFFICE REPRESENTATION BAN TO STATE LEGISLATOR

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

SUMMARY:

Guidance is provided regarding Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a., Florida Statutes, for a State Legislator whose law firm may provide regulatory and administrative counsel to a client regulated by the Florida Agency for Health Care Administration. Although the State Legislator may not personally represent a client for compensation before a State Agency, other members of his law firm can do so. The State Legislator may also personally represent a client for compensation before a judicial tribunal in litigation where a State Agency is a party. However, for purposes of the in-office representation ban, DOAH is not a judicial tribunal. Referenced are CEOs 25-9, 10-22, 01-3, 84-21, 84-6, 82-33, 81-24, 81-12.

QUESTION 1:

During a State Legislator's term of office, does Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a., Florida Statutes, prohibit other attorneys employed by his law firm from engaging in the representation of a client for compensation before the Florida Agency for Health Care Administration (AHCA)?

This question is answered as follows.

In your ethics inquiry, you indicate that you are a member of the Florida House of Representatives. You also indicate that, in your private capacity, you are an attorney and a principal of a law firm ("the Firm") that maintains a regulatory and administrative practice. Your inquiry states that the Firm has been asked to provide ongoing regulatory and administrative counsel to a healthcare provider client ("the Client") that owns and operates one or more licensed healthcare facilities in the state. You note the Client is licensed, surveyed, and otherwise regulated by the Florida Agency for Health Care Administration ("AHCA"), which is an agency within the executive branch of state government.

You indicate that the proposed engagement between the Firm and the Client is broad in scope and would encompass general regulatory and administrative counsel. As examples, you indicate the Firm's representation would include facility licensure and renewal matters, survey and deficiency responses and plans of correction, Medicaid matters, administrative complaints and enforcement proceedings, and related compliance advice. You note that a substantial portion of these matters may require representation of the client before AHCA.

You indicate that you do not intend to personally represent the Client before AHCA due to the prohibitions contained within Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a., Florida Statutes ("the in-office representation ban"). However, you ask whether other attorneys of the Firm may undertake the representation.

Article II, Section 8(e), Florida Constitution, states in relevant part:

No member of the legislature shall personally represent another person or entity for compensation during term of office before any state agency other than judicial tribunals. Similar restrictions on other public officers and employees may be established by law.

Similarly, Section 112.313(9)(a)3.a., Florida Statutes, states in relevant part:

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.

It is clear that AHCA is a State agency within the executive branch of State government. As such, during your term of office, you will be prohibited from personally representing the Client for compensation before AHCA. In terms of the specific conduct contemplated by the in-office representation ban, the definition of the term "represent" is quite expansive. Section 112.312(22), Florida Statutes, provides that "represent" or "representation" 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.

Although you may be prohibited from representing the Client for compensation before AHCA, the in-office representation ban will not extend to your entire firm. In past opinions, we have recognized that the firms of State Legislators may engage in representation before state agencies so long as the Legislator does not personally represent the client before the State agency. See CEO 01-3, CEO 84-21, CEO 82-33, and CEO 81-24. As such, as long as you do not personally engage in any conduct that would amount to "representation," other attorneys in your firm may do so without offending the in-office representation ban.¹

Of note, if other attorneys from your firm do represent the Client before AHCA or other state-level agencies, you should be aware of the disclosure requirement found in Section 112.3145(6), Florida Statutes, which in relevant part provides:

Each elected constitutional officer, state officer, local officer, and specified state employee shall file a quarterly report of the names of clients represented for a fee or commission, except for appearances in ministerial matters, before agencies at his or her level of government. For the purposes of this part, agencies of government shall be classified as state-level agencies or agencies below state level. Each state officer, elected constitutional officer, and specified state employee shall file such report with the commission . . . The report must be filed only when a reportable representation is made during the calendar quarter and must be filed no later than the last day of each calendar quarter, for the previous calendar quarter.

For purposes of this disclosure requirement, a disclosable representation includes representation by any partner or associate of the professional firm of which the public officer is a member and of which he or she has actual knowledge.² As such, although the representation of the Client by other attorneys in the Firm will not place you in violation of the in-office representation ban, if you know the Firm has represented a client before AHCA, or any other state-level agency, you must disclose this on a quarterly basis on the CE Form 2, "Quarterly Client Disclosure."³

Your question is answered accordingly.

QUESTION 2:

During a State Legislator's term of office, does Article II, Section 8(e) of the Florida Constitution and Section 112.313(9)(a)3.a., Florida Statutes, prohibit him from representing a client for compensation before a judicial tribunal in litigation involving AHCA, including personally participating in settlement negotiations?

This question is answered in the negative.

Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a., Florida Statutes, both expressly provide that 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" (emphasis added). The language in Section 112.313(9)(a)3.a., Florida Statutes, also explicitly includes, "or in settlement negotiations after the filing of a lawsuit" within its judicial tribunal exception.

Further, we have previously opined in CEO 84-6 that the in-office representation ban permitted a State Legislator to personally represent a client in court in a lawsuit against a State agency. In that opinion, we noted that because the plain language of the ban expressly allows representations before judicial tribunals, "all those activities which naturally are attendant to representing a client before a court also must be permitted." These activities could include communications with opposing counsel regarding the lawsuit and settlement negotiations, even if the opposing counsel is employed by a State agency. We opined that "an attorney is not representing a client before a State agency when engaging in those communications which naturally result from a lawsuit in court against the agency. In essence, the agency has no proceedings before it which affect the legislator's client; the proceedings are before the court, a judicial tribunal." See also CEO 10-22.

Your question is answered accordingly.

QUESTION 3:

Does the "judicial tribunal" exception in Article II, Section 8(e), Florida Constitution, and Section 112.313(9)(a)3.a., Florida Statutes, extend to a proceeding before the Division of Administrative Hearings (DOAH) under Chapter 120, Florida Statutes, such that a State Legislator may personally appear for compensation on a client's behalf?

This question is answered in the negative.

The answer to your question here depends on whether DOAH is a judicial tribunal. In Myers v. Hawkins, 362 So.2d 926 (1978), the Florida Supreme Court analyzed whether the Florida Public Service Commission was a "judicial tribunal" for purposes of Article II, Section 8(e), Florida Constitution. The Court created a "predominant characteristics test" to determine whether a State agency is a "judicial tribunal" for purposes of the in-office representation ban, which we have since applied in answering the question as it relates to other state agencies. See CEO 25-9.

In creating a "predominant characteristics test," the Court looked to four factors that the average voter would have understood to encompass governmental bodies that are judicial tribunals: (1) the agency presides over proceedings that are adversary; (2) the agency is comprised of an impartial group of decisionmakers; (3) the agency has the power to issue final orders that it has the power to enforce; and (4) an identifiable standard of appellate review can be used to test the agency's decisional processes to ensure due process. See Myers at 931.⁴ After analyzing an agency's responsibilities in the context of these four factors, the Court also emphasized a distinction must be made between agencies that possess the requisite judicial characteristics for only "some aspect of their activities," and those possessing those characteristics for "all or virtually all" of their activities. Id. (cleaned up). In holding that the Public Service Commission was not a judicial tribunal for purposes of Article II, Section 8(e), the Myers Court remarked that while some of the Public Service Commission's functions fit into the four factors, "the statutory range of the [Public Service] Commission's responsibilities is so vast that the agency in fact exercises judicial-like powers in performing only a fraction (albeit a highly visible and significant fraction) of its duties." Id. at 932. The Court then went on to say that "the exercise of judicial-like powers is not inherent in all (or virtually all) of its statutory activities, and we are satisfied that it would not have been perceived by the public as being a judicial tribunal." Id. In so stating, the Court clarified only those agencies where all or virtually all of their responsibilities fit the four factors should be considered judicial tribunals for purposes of Article II, Section 8(e).

In applying the "predominant characteristics" test from Myers to the DOAH, it does not appear that DOAH is a "judicial tribunal" within the contemplation of Article II, Section 8(e), Florida Constitution. Specifically, the third Myers factor (that the agency has the power to issue final orders that it has the power to enforce) is at issue in this analysis.

A review of Chapter 120, Florida Statutes, reveals that Administrative Law Judges ("ALJs") at DOAH preside over many different types of proceedings involving state agencies. While it is apparent that the factor regarding DOAH's ability to enter enforceable final orders may be satisfied in some of these proceedings, such as rule challenges brought pursuant to Section 120.56, Florida Statutes, it is also apparent that this factor is not satisfied in all, or virtually all, of DOAH's proceedings.

For instance, in proceedings conducted pursuant to Sections 120.569 and 120.57(1), Florida Statutes (proceedings in which the substantial interests of a party are determined by an agency and the proceeding involves a disputed issue of material fact), the ALJ enters a recommended order consisting of findings of fact, conclusions of law, and recommended disposition or penalty, if applicable, and any other information required by law to be contained in the final order. See § 120.57(1)(k), Fla. Stat. Ultimately, however, it is the State agency for which DOAH holds the hearing that issues and enforces the final order in the proceeding. Pursuant to Section 120.57(1)(l), Florida Statutes, under certain circumstances, the underlying State agency may reject or modify the ALJ's conclusions of law over which it has substantive jurisdiction, the ALJ's interpretation of administrative rules over which it has substantive jurisdiction, the ALJ's findings of fact, and the ALJ's recommended penalty. These types of proceedings are not a small part of DOAH's functions. In fact, they are a very large part of DOAH's functions. Therefore, because the four Myers factors are not satisfied for all, or virtually all, or DOAH's functions, DOAH is not a "judicial tribunal" for purposes of in-office representation ban. This result is also not inconsistent with what we found in CEO 81-12, Question 1, in which we opined that "executive departments and administrative hearing officers" fell within the prohibition.

In CEO 25-9, the Commission found that although the Florida Board of Bar Examiners was not a judicial tribunal under the in-office representation ban, Section 112.316, Florida Statutes, was applicable to negate the enforcement of the ban because the harm contemplated by the ban was not present in that case.⁵ As the Supreme Court in Myers wrote, the purpose of the ban on State Legislators representing clients before agencies is "to prevent those who have plenary budgetary and statutory control over the affairs of public agencies from potentially influencing agency decisions (or giving the appearance of having an influence) when they appear before the agencies as compensated advocates for others." Myers at 930. The application of Section 112.316 to the Florida Board of Bar Examiners in CEO 25-9 was appropriate because the State Legislature has no budgetary or statutory control over that agency.

However, we decline to apply Section 112.316 in the instant scenario. Here, DOAH is an agency of the executive branch that is funded by the Legislature. The Legislature also has the ability to enact statutes governing DOAH's activities, including how proceedings under Chapter 120 are conducted. As such, the in-office representation ban will prevent you from personally representing a Client in a DOAH proceeding while you are a State Legislator.

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]Your inquiry includes a proposed screening protocol for the duration of your term of office. Specifically, the protocol provides that you will not appear before the agency, sign pleadings, applications, or correspondence directed to the agency on the Client’s behalf, communicate with agency staff as the Client’s advocate, or attend agency hearings or workshops on the Client’s behalf. The proposed protocol also provides that no member or employee of the Firm will identify you as a member of the Legislature, or reference your legislative office, in connection with the engagement — whether in filings, correspondence, marketing, or any communication with the agency or the Client. If you stay within these proposed boundaries, it does not appear that you will be at risk of violating the in-office representation ban. However, we suggest also contacting the Florida Bar relating to the applicability of its rules to any screening protocols within the Firm.