The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: CS/CS/HB 7001
INTRODUCER: Rules Committee; State Affairs Committee; Public Integrity and Elections Committee;
and Representative Koster
SUBJECT: Implementation of the Constitutional Prohibition Against Lobbying by a Public Officer
DATE: February 14, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Rey Phelps RC Favorable
I. Summary:
In 2018, the people of Florida amended the State Constitution to prohibit lobbying by certain
public officers both during public service and for a six-year period following vacation of public
office. The prohibitions address lobbying on issues of policy, appropriations, or procurement
before the federal government, the legislature, any state government body or agency, or any
political subdivision. The amendment takes effect on December 31, 2022. It expressly authorizes
the Legislature to enact implementing legislation to include definitions and penalties. Such
legislation may deal with no other subject.
The bill implements the public officer lobbying prohibitions by:
Providing definitions of terms that have no clear constitutional definition;
Specifying that the prohibitions apply to persons in public office on or after December 31,
2022;
Authorizing the Commission on Ethics (Commission) to investigate and determine violations
of the new prohibitions;
Providing a range of penalties for violations and directing the Commission to report post-
service lobbying violations and recommended punishment to the Governor for imposition of
penalties; and
Authorizing the Chief Financial Officer and Attorney General independently to collect
monetary penalties imposed.
The bill takes effect December 31, 2022.
II. Present Situation:
In 2018, the people of Florida amended the State Constitution to prohibit lobbying by certain
public officers both during public service and for a six-year period following vacation of public
REVISED: BILL: CS/CS/HB 7001 Page 2
office.
1
The prohibitions address lobbying on issues of policy, appropriations, or procurement
before the federal government, the Legislature, any state government body or agency, or any
political subdivision. The amendment takes effect on December 31, 2022.
2
The amendment
expressly authorizes the Legislature to enact implementing legislation to include definitions and
penalties.
3
The prohibitions affect the following officers:
Statewide elected officers;
Members of the Legislature;
County commissioners;
Constitutional county officers and county charter officers;
School board members;
School superintendents;
Elected municipal officers,
Elected special district officers in special districts with ad valorem taxing authority; and
Secretaries, executive directors, and other administrative heads of executive branch
departments.
Officers Defined in Statute
“Secretaries” and “executive directors” are not constitutional officers.
4
A “secretary” is
appointed by the Governor to head a department and is not otherwise named in the State
Constitution. An “executive director” is the chief administrative employee or officer of a
department headed by a board or by the Governor or Cabinet. Other departments authorized by
the State Constitution
5
may have administrative heads not identified as secretaries or executive
directors. Moreover, statutory terminology is subject to change over time.
Florida has a variety of special districts with ad valorem taxing authority. Some such districts
may not exercise ad valorem taxing authority without converting their governing board from
landowner elected to a board elected by all qualified electors residing in the district.
6
Commission on Ethics
The Commission on Ethics (Commission) was created by the Legislature in 1974 “to serve as
guardian of the standards of conduct” for state and local public officials and employees.
7
State
law designates the Commission as the independent commission provided for in s. 8(f), Art. II of
the State Constitution.
8
Constitutional duties of the Commission consist of conducting
1
S. 8(f), Art. II, Fla. Const. (effective 12/31/2022).
2
S. 38, Art. XII, Fla. Const.
3
S. 8(f), Art. II, Fla. Const. (effective Dec. 31, 2022).
4
S. 20.03(5) and (6), F.S.
5
S 6, Art. IV, Fl. Const.
6
S. 190.006(3), F.S.
7
Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for Public Officers and Employees,
available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf (last visited January 10, 2022);
See also S. 112.320, F.S.
8
S. 112.320, F.S. BILL: CS/CS/HB 7001 Page 3
investigations and making public reports on all breach of trust complaints towards public officers
or employees not governed by the judicial qualifications commission.
9
In addition to its
constitutional duties, the Commission, in part:
Renders advisory opinions to public officials;
10
Makes recommendations to disciplinary officials when appropriate for violations of
ethics and disclosure laws;
11
Administers the Executive Branch Lobbying Registration and Reporting Law;
12
Maintains financial disclosure filings of constitutional officers and state officers and
employees;
13
and
Administers automatic fines for public officers and employees who fail to timely file
required annual financial disclosure.
14
Restrictions on lobbying and related representation
The State Constitution prohibits members of the Legislature from personally representing
another person or entity for compensation during a term of office before any state agency other
than a judicial tribunal. Similarly, it also prohibits statewide elected officers and members of the
Legislature from personally representing another person or entity for compensation before the
government body or agency where the individual was an officer or member for two years
following vacation of office.
15
The phrase “represent for compensation” appears to involve more
activities than “lobbying” as defined by current laws. Legal representation in administrative
proceedings and representation of a person under discipline by the House of Representatives or
Senate are examples of representation barred by the previous constitutional restrictions but
currently excluded from statutory definitions of lobbying.
Certain former local officials are also prohibited from personally representing another person or
entity for compensation before the government body or agency where the individual was an
officer for two years after vacating that office. This applies to elected county, municipal, special
district, or school district officers and appointed school district superintendents.
16
The Code of Ethics for Public Officer and Employees
17
prohibits a broad class of public officers
and employees from representing another for compensation before their former employing
agency for a period of two years following vacation of office.
18
In 2013, the statute was amended
to prohibit former members of the Legislature from lobbying for compensation before the
9
S. 8(f), Art. II, Fla. Const.
10
S. 112.322(3)(a), F.S.
11
S. 112.322(2)(b), F.S.
12
Ss. 112.3215, 112.32155, F.S.
13
S. 112.3144, F.S.
14
S. 112.31455, F.S.; see also Florida Commission on Ethics, Guide to the Sunshine Amendment and Code of Ethics for
Public Officers and Employees, available at http://www.ethics.state.fl.us/Documents/Publications/GuideBookletInternet.pdf
(last visited January 10, 2022).
15
S. 8(e), Art. II, Fla. Const.
16
S. 112.313(14), F.S.
17
Pt. III, Ch. 112, F.S.
18
S. 112.313(9), F.S. BILL: CS/CS/HB 7001 Page 4
executive branch for a period of two years following vacation of office.
19
That provision
incorporates the definitions in the executive branch lobbyist registration law.
20
Lobbyist registration laws
Current law requires registration before lobbying either the Legislature or the executive branch.
21
Those laws and their implementing rules provide definitions of terms applicable in those two
divergent contexts. Registration is required of everyone who contracts for compensation or is
employed for the purpose of lobbying or for whom government affairs constitutes a principal
responsibility of their employment. Lobbying in the legislative context includes seeking the
goodwill of a legislator or staff member. It also includes any attempt to influence legislative
action.
22
Current law requires every state agency, state university, or community college
employee who seeks to influence legislative action by appearing before or attending a legislative
meeting to register as a lobbyist regardless of whether lobbying is merely incidental to their
employment.
23
That requirement does not affect communications outside of the employer’s
normal business hours.
24
The House of Representatives and Senate enforce legislative lobbyist
registration requirements.
In the context of the executive branch, lobbying means seeking to influence an agency decision
and includes attempts to obtain the goodwill of agency officials or employees.
25
The executive
branch registration law is limited to lobbying on decisions in the area of policy or procurement.
26
The Commission enforces executive branch lobbyist registration.
27
The Commission has defined
“policy” and “procurement” in rules implementing executive branch lobbying registration.
28
In each context, there are explicit clarifying exceptions. Under legislative lobbying, exceptions
include:
Responding to a request for information from a legislator, committee, or staff member;
Appearing in response to a legislative subpoena;
Providing advice or services to the Legislature under a contract that uses public funds;
Representing a client in a disciplinary matter in the House of Representatives or Senate;
A judicial or other state officer acting in his or her official capacity; and
Appearing as a witness to provide information at the written request of the chair of a
legislative meeting.
29
Under executive branch lobbying, exceptions include:
19
Ch. 2013-36, Laws of Fla.
20
S. 112.3215, F.S.
21
Ss. 112.3215(3), 11.045(2), F.S.
22
S. 11.045(1), F.S., Joint Rule 1.1(2) (published with the House Rules).
23
S. 11.061(1), F.S.
24
Id.
25
S. 112.3215(1)(f), F.S.
26
Id.
27
Ss. 112.322, 112.324, F.S.
28
R. 34-12.020(9) and (11), F.A.C. Chapter 34-12, F.A.C. also supplies additional definitions and clarifies statutory
exceptions.
29
Joint Rule 1.1(3) and (4). BILL: CS/CS/HB 7001 Page 5
A person representing a client in a judicial proceeding or a formal administrative
proceeding under the Administrative Procedure Act
30
(APA);
An employee of an executive branch agency or legislative or judicial branch entity acting
in the normal course of his or her duties;
A confidential informant providing confidential information for law enforcement
purposes; and
A person lobbying on a procurement in the lowest cost category under state procurement
laws.
31
The state ethics laws also regulate gifts of lobbyists or their principals to reporting individuals
and procurement employees.
32
There is currently no state law definition of “lobbying” in the
context of political subdivisions or the federal government.
Current law specifies officers with appropriate administrative or constitutional jurisdiction and
authorizes them to impose penalties for ethics violations committed by particular public officers
or employees.
33
III. Effect of Proposed Changes:
The bill implements the constitutional lobbying prohibition for public officers, which is
scheduled to go into effect on December 31, 2022. The bill defines a number of terms used in the
constitutional provision and other terms needed for clarity. The bill provides that the prohibition
applies to those holding public office on or after December 31, 2022. It provides for
administrative enforcement of the constitutional prohibition and establishes penalties for
violating the prohibition.
Definitions
The bill defines terms whose meaning may not be clear from the constitutional context in which
they are used. The amendment applies to a specific set of public officers, three of which are not
constitutionally identified offices. The bill defines “secretary” and “executive director”
consistent with the executive branch organization statutes
34
and defines “other agency head” in a
corresponding manner.
The bill defines “elected special district officer in a special district with ad valorem taxing
authority” in a manner excluding community development district board members elected by
landowners under a law that does not allow the board to levy ad valorem taxes until members
have been elected by qualified electors.
35
30
Ch. 120, F.S.
31
S. 112.3215(1)(h), F.S.
32
S. 112.3148, F.S.
33
S. 112.324(4)-(8), F.S.
34
S. 20.03, F.S.
35
S. 190.006(3), F.S. BILL: CS/CS/HB 7001 Page 6
The bill defines “lobby”, “compensation”, and “legislative action” in a manner consistent with
current lobbying registration laws covering the legislative
36
and executive
37
branches. It defines
“lobby for compensation” in a manner consistent with the definition of “lobbyist” in both
registration laws.
38
The bill also defines “issue of policy” and “issue of procurement” consistent
with current rules of the Commission.
39
The bill defines “issue of appropriation” in a manner consistent with the appropriation power.
The bill also contextually defines lobbying before the federal government and lobbying before
political subdivisions. Specifically, lobbying the federal government is limited to influencing a
decision of the United States’ legislative or executive branch where lobbyist registration is
required. Lobbying a political subdivision is limited to legislative action or other discretionary
decisions; it does not include administrative actions.
The bill defines “state government body or agency” in a manner consistent with the breadth of
the constitutional provision to include any “department, agency, commission, council, board, or
instrumentality” created by the state constitution or general law and “any official or officer
thereof”. Further, the bill provides that the term includes each state attorney, public defender,
criminal conflict and civil regional counsel, and capital collateral regional counsel.
The bill defines “political subdivision” in a manner consistent with other laws but limited to
categories addressed by the constitutional provision, excluding special districts that do not have
ad valorem taxing authority. “Federal government” is defined as Congress and any federal
executive branch department, office, agency, or instrumentality, corporate or otherwise, or any
federal independent agency, including any unit thereof.
The bill defines “administrative action” as a category of decisions exempt from those covered by
the definition of “lobby”. The definition excludes procurement decisions, which are expressly
included in the constitutional prohibitions. “Administrative action” includes APA proceedings in
state agencies. However, the APA applies to neither federal agencies nor political subdivisions.
For this reason, the bill provides a specific definition of administrative action outside APA
proceedings. The definition incorporates the following specific examples of administrative
matters:
Any action or decision on a license, permit, waiver of regulation, development order or
permit, or development agreement;
Any quasi-judicial proceedings under s. 286.0155(2), F.S.;
Any decision subject to judicial review; or
Any other administrative procedure, except on an issue of procurement.
The explicit definition of administrative action works in conjunction with “a decision or
determination of any rights, duties, or obligations made on a case-by-case basis,” which is an
exclusion provided in the definition of “issue of policy”. Also related, the definition of “lobby
36
S. 11.045(1), F.S.
37
S. 112.3215(1), F.S.
38
Ss. 11.045(1)(g), 112.3215(1)(h), F.S.
39
R. 34-12.020(9) and (11), F.A.C. BILL: CS/CS/HB 7001 Page 7
for compensation” expressly excludes representation on a legal claim cognizable in court or
other tribunal to include pre-litigation offers, demands, and negotiations. Together, these provide
broader exemptions than those provided in the current lobbying registration laws with respect to
administrative representations and settlement negotiations.
The definitions of “lobby” and “lobby for compensation” include exceptions consistent with the
present registration laws. The bill broadens current exemptions for settlement negotiations
regarding pending lawsuits expressly allowing pre-litigation demands, offers, and negotiations,
but expressly excluding any claim bill pending in the Legislature. The bill also exempts expert
witness testimony and related communications.
The definition of “lobby for compensation” departs from current legislative branch lobbying
laws in treating state employees the same as private sector employees when not employed
principally for government relations.
Finally, the bill defines “governmental entity” to include the federal government, the Legislature,
any state government body or agency, or any political subdivision.
Administration
The bill applies the constitutional prohibitions only to persons serving in the affected public
offices on or after December 31, 2022.
The bill deems a violation of the new constitutional prohibitions to be a violation of the Code of
Ethics for purposes of administration. This authorizes the Commission to investigate and
determine violations raised in a written sworn complaint or written authorized referral. The
process invoked includes preliminary investigations by Commission staff, probable cause
determinations by the Commission, adjudicatory hearings before the Division of Administrative
Hearings, and final orders by the Commission.
40
The bill provides penalties consistent with current penalties for prohibited lobbying and other
prohibited representation.
41
The penalties are:
Public censure and reprimand;
A civil penalty up to $10,000; and
Forfeiture of pecuniary benefits received from the violation, which must be paid to the
General Revenue Fund.
The bill requires the Commission to report violations of the post-service lobbying prohibition
and recommended penalties to the Governor for imposition of penalties. Existing referral
requirements would apply to violations by current public officers.
42
The Chief Financial Officer
and Attorney General are each authorized to collect any penalty imposed.
40
S. 112.324, F.S.
41
S. 112.317(1)(d), F.S.
42
S. 112.324(4)-(8), F.S. BILL: CS/CS/HB 7001 Page 8
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
Not applicable. The bill does not appear to affect county or municipal governments.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
The constitutional amendment provides that implementing legislation “shall not contain
provisions on any other subject”.
43
The bill neither amends nor incorporates other laws
assuring compliance with this requirement.
The bill defines terms used in the constitutional amendment, which have no clear
constitutional definition. The following terms used in the amendment, but not defined in the
bill, appear to have clear constitutional meaning:
Government body or agency;
Legislature;
Public officer (the affected officers are specified in the amendment);
County commissioner;
Constitutional and county charter officers listed in the amendment;
Elected municipal officer;
School board member and superintendent of schools;
The Legislature;
Member of the Legislature;
The Governor;
Members of the Cabinet;
Department; and
Ad valorem taxing authority.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
43
S. 8(f)(5), Art. II, Fla. Const. (effective December 31, 2022). BILL: CS/CS/HB 7001 Page 9
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill creates the following sections of the Florida Statutes: 112.3121 and 112.3122.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.