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LTC 532-2022 New Post-Service Lobbying laws applicable to Elected City Commission MembersMIAMI BEACH OFFICE OF THE CITY ATTORNEY LTC No. 532-2022 TO: Mayor Dan Gelber Members of the City Commission FROM: Rafael A. Paz, City Attorney DATE: December 23, 2022 LETTER TO COMMISSION SUBJECT: New Post -Service Lobbying laws applicable to Elected City Commission Members. The purpose of this Letter to Commission ("LTC") is to remind the Mayor and City Commission of new post -service lobbying restrictions approved by Florida voters in 2018. The new State restrictions apply to any City elected official serving on or after December 31, 2022. In 2018, Florida voters approved an amendment (effective December 31, 2022) to the State Constitution which, in part, prohibits lobbying for a six-year period following vacation of public office by certain State and local public officers, including "elected municipal officers" in office on or after December 31, 2022. The State restrictions are separate from the County's existing two year post -service lobbying restriction. The amendment also applies to "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 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." Fla. Const. Art. Il, Sec. 8, (f)(1). 1. Current County Ban on Post -Service Lobbying by Former City Commission Members. Since January 1999, the Miami -Dade County Ethics Code has prohibited a former elected City officer from lobbying, whether or not for compensation, City personnel for a period of two years after leaving City service. A copy of the County's post -service lobbying restriction, known as the "Two -Year Rule," is attached to this LTC as Exhibit "A". The definition of "lobbying" is broad, affecting any matter "...which foreseeably will be heard or reviewed by [City] personnel...".' Exceptions to this County 1 Miami -Dade County Code Section 2-11.1 (s)1(d). law are generally limited to a former Commission member's lobbying activities on behalf of a governmental entity or a 501(c)3 non-profit or educational entity. 2. New Constitutional Ban on Post -Service Lobbying Applicable to Former City Commission Members Serving on or after December 31, 2022. The amended Constitutional provision (Exhibit "B" attached hereto) extends the post -service lobbying prohibition from two years to six years, yet contains a narrower definition of "lobbying" than County law, limited to "influencing legislative actions or other discretionary decisions, but does not include administrative actions" 2 --moreover, unlike County law, the Constitutional proscription is applicable only when the lobbying is "for compensation",3 on issues of "policy, appropriations, or procurement".4 2 See attached Composite Exhibit "C", setting forth Florida Statute sections 112.3121 and 112.3122 (2022), defining these and other terms not clearly defined in the Constitutional amendment. 3 Fla. Stat. 112.3121(12)(x): "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. 41d. at (7): "Issue of appropriation" means a legislative decision to expend or approve an expenditure of public funds, including decisions that are delegated to an administrator. (8) "Issue of policy" means a change in a law or an ordinance or a decision, plan, or course of action designed to influence or determine the subsequent decisions or actions of a governmental entity, to sell or otherwise divest public property, or to regulate conduct. The term does not include a decision or determination of any rights, duties, or obligations made on a case-by-case basis. (9) "Issue of procurement" means a proposal to purchase or acquire property, an interest in property, or services by a governmental entity. 2 Conclusion Individual City Commission members should be mindful of the above laws in assessing their ability to lobby the City after they leave City office. In general, the Constitution's 6 - year prohibition on post -service lobbying by a former City Commission member will apply if lobbying is "for compensation," on "legislative not administrative" matters concerning "policy, appropriations, or procurement" (to which none of the exceptions apply). If these elements are not present, then the County's restriction, which applies to a broader definition of lobbying activities, will control—but only for a period of two (2) years. Please keep in mind that the specific determination of which law applies to any such post -service lobbying will depend on the unique facts applicable to each situation. In that regard, although I remain available to offer guidance, advisory ethics opinions may be requested from the Florida Ethics Commission and/or Miami -Dade County Commission on Ethics and Public Trust. To date, the Florida Ethics Commision and County Ethics Commission have not issued any opinion interpreting this recently -enacted constitutional provision. 3 EXHIBIT A Miami -Dade County Post -Service Lobbying Restriction (the "Two -Year Rule") Miami -Dade County Code Section 2-11.1(q), which is also known as the "Two -Year Rule," states as follows: (1) No person who has served as an elected county official, i.e., mayor, county commissioner, or a member of the staff of an elected county official, or as county manager, senior assistant to the county manager, department director, departmental personnel or employee shall, for a period of two (2) years after his or her county service or employment has ceased, lobby any county officer, departmental personnel or employee in connection with any judicial or other proceeding, application, RFP, RFQ, bid, request for ruling, or other determination, contract, claim, controversy, charge, accusation, arrest or other particular subject matter in which Miami -Dade County or one (1) of its agencies or instrumentalities is a party or has any interest whatever, whether direct or indirect. ...Nothing contained in this Subsection (q)(1) shall prohibit any individual included within the provisions of this subsection from submitting a routine administrative request or application to a county department or agency during the two-year period after his or her county service has ceased. (2) The provisions of this Subsection (q) shall not apply to officials, departmental personnel or employees who become employed by governmental entities, 501(c)(3) non-profit entities or educational institutions or entities, and who lobby on behalf of such entities in their official capacities. Note that the County Conflict of Interest and Code of Ethics Ordinance, which includes the Two -Year Rule, applies to equally to municipal officials, and references to "elected county officials" apply equally to elected City officials: (a) Designation. This section shall be designated and known as the "Miami -Dade County Conflict of Interest and Code of Ethics Ordinance." This section shall be applicable to all County personnel as defined herein, and shall also constitute a minimum standard of ethical conduct and behavior for all municipal officials and officers, autonomous personnel, quasi-judicial personnel, advisory personnel, departmental personnel and employees of municipalities in the County insofar as their individual n relationships with their own municipal governments are concerned. References in the section to County personnel shall therefor be applicable to municipal personnel who serve in comparable capacities to the County personnel referred to. County Code Sec. 2-11.1(a) (emphasis added). 5 Exhibit "B" Florida Constitution, Article II, Section 8 SECTION B. Ethics in government.—A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right: (a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests. (b) All elected public officers and candidates for such offices shall file full and public disclosure of their campaign finances. (c) Any public officer or employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions. The manner of recovery and additional damages may be provided by law. (d) Any public officer or employee who is convicted of a felony involving a breach of public trust shall be subject to forfeiture of rights and privileges under a public retirement system or pension plan in such manner as may be provided by law. (e) No member of the legislature 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 two years following vacation of office. 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. (f)(1) 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. (2) 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. (3) A public officer shall not lobby for compensation on issues of policy, appropriations, or procurement for a period of six years after vacation of public position, as follows: a. A statewide elected officer or member of the legislature shall not lobby the legislature or any state government body or agency. 0 b. A person serving as a secretary, an executive director, or other agency head of a department of the executive branch of state government shall not lobby the legislature, the governor, the executive office of the governor, members of the cabinet, a department that is headed by a member of the cabinet, or his or her former department. c. 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, or an elected special district officer in a special district with ad valorem taxing authority shall not lobby his or her former agency or governing body. (4) This subsection shall not be construed to prohibit a public officer from carrying out the duties of his or her public office. (5) The legislature may enact legislation to implement this subsection, including, but not limited to, defining terms and providing penalties for violations. Any such law shall not contain provisions on any other subject. (g) There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission. (h)(1) A code of ethics for all state employees and nonjudicial officers prohibiting conflict between public duty and private interests shall be prescribed by law. (2) A public officer or public employee shall not abuse his or her public position in order to obtain a disproportionate benefit for himself or herself; his or her spouse, children, or employer; or for any business with which he or she contracts; in which he or she is an officer, a partner, a director, or a proprietor; or in which he or she owns an interest. The Florida Commission on Ethics shall, by rule in accordance with statutory procedures governing administrative rulemaking, define the term "disproportionate benefit" and prescribe the requisite intent for finding a violation of this prohibition for purposes of enforcing this paragraph. Appropriate penalties shalt be prescribed by law. (i) This section shall not be construed to limit disclosures and prohibitions which may be established by law to preserve the public trust and avoid conflicts between public duties and private interests. (j) Schedule—On the effective date of this amendment and until changed by taw: (1) Full and public disclosure of financial interests shall mean filing with the custodian of state records by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following: a. A copy of the person's most recent federal income tax return; or b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which they are to be filed shall be 7 prescribed by the independent commission established in subsection (g), and such rules shall include disclosure of secondary sources of income. (2) Persons holding statewide elective offices shall also file disclosure of their financial interests pursuant to paragraph (1). (3) The independent commission provided for in subsection (g) shall mean the Florida Commission on Ethics. History.—Proposed by Initiative Petition filed with the Secretary of State July 29, 1976; adopted 1976; Ams. proposed by Constitution Revision Commission, Revision Nos. 8 and 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998; Am. proposed by Constitution Revision Commission, Revision No. 7, 2018, filed with the Secretary of State May 9, 2018; adopted 2018.