This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7003b.JDC
DATE: 1/18/2022
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7003 PCB PIE 22-02 Implementation of the Constitutional Prohibition Against
Lobbying by a Former Justice or Judge
SPONSOR(S): Public Integrity & Elections Committee, Koster
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Public Integrity & Elections
Committee
16 Y, 0 N Dillon Rubottom
1) State Affairs Committee 22 Y, 0 N Skinner Williamson
2) Judiciary Committee Brascomb Kramer
SUMMARY ANALYSIS
In 2018, the people of Florida amended the state constitution to prohibit lobbying by former justices and judges
for a six-year period following vacation of judicial office. The prohibition addresses lobbying on issues of policy,
appropriations, or procurement, and addresses lobbying before the legislative and executive branches of state
government. 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.
Current law provides a number of lobbying restrictions based on public service. The state constitution provides
that legislators may not represent another for compensation before any state agency while serving in
legislative office and legislators and statewide elected officers may not represent another for compensation
before the government body where they were an officer or member for two years following vacation of office.
The Code of Ethics for Public Officers and Employees prohibits a broad class of public officers and employees
from representing another for compensation before their former department or employer for two years after
leaving public service. Finally, state legislators may not lobby the executive branch, as defined by the lobby
registration laws, for a period of two years after vacation of office.
Current law and related rules define lobbying and related terms for the purpose of registration to lobby both in
the Legislature and in the executive branch.
There is no current law that prohibits lobbying by former justices and judges.
HB 7003 implements the constitutional prohibition on lobbying by former justices and judges for six years
following vacation of judicial office. It provides definitions of terms that have no clear constitutional definition
and provides that the prohibition applies to justices and judges who vacate office on or after December 31,
2022. It authorizes the Commission on Ethics (Commission) to investigate and determine violations of the new
prohibition. The bill provides a range of penalties for violations and directs the Commission to report a violation
and recommended punishment to the Governor for imposition of penalties. Finally, it authorizes the Chief
Financial Officer and Attorney General independently to collect monetary penalties imposed.
This bill has an uncertain but likely insignificant fiscal impact on the state.
The bill provides an effective date of December 31, 2022. STORAGE NAME: h7003b.JDC PAGE: 2
DATE: 1/18/2022
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
In 2018, the people of Florida amended the state constitution to prohibit a former justice or former judge
from lobbying for compensation before the legislative or executive branches of state government for six
years following vacation of his or her judicial position.
1
The prohibition addresses lobbying on issues of
policy, appropriations, or procurement. 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
Restrictions on Lobbying
The Code of Judicial Conduct (Code) establishes standards for the ethical conduct of judges. However,
the Code does not expressly address lobbying by current or former justices or judges. The Code does
prohibit a judge from engaging in any political activity except on behalf of measures to improve the law,
the legal system, or the administration of justice, or as expressly authorized by the Code or by law.
4
The Code does place certain restrictions on compensation for quasi-judicial and extrajudicial activities.
5
A judge may accept compensation, reimbursement, payment of expenses, and waiver of fees or
charges if the source of such does not give the appearance of influencing the judge in the performance
of his or her judicial duties or give the appearance of impropriety, subject to the specified restrictions.
6
The Code also states that a judge should not lend the prestige of judicial office to advance the private
interests of the judge or others.
7
The Code is enforced through the Judicial Qualifications Commission
(JQC), established by the constitution to investigate misconduct of justices or judges and recommend
discipline up to and including removal from office. The Supreme Court is authorized to impose
punishment for such conduct.
8
There is currently no prohibition against former justices or former judges lobbying after vacation of
office. However, senior judges eligible to preside in trial courts on temporary assignments are bound by
the Code, except for specified provisions.
9
The restrictions might discourage such individuals accepting
lobbying contracts. The Code currently requires disclosure of financial interests by judges vacating
office.
10
There are no other rules, nor jurisdiction of the JQC, respecting conduct of justices or judges
after they vacate judicial office.
Lobbyist Registration Laws
Current law requires registration before lobbying either the Legislature or the executive branch.
11
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
1
S. 13(b), Art. V, Fla. Const. (effective Dec. 31, 2022).
2
S. 38, Art. XII, Fla. Const.
3
S. 13(b), Art. V, Fla. Const. (effective Dec. 31, 2022).
4
Canon 7 D, Florida Code of Judicial Conduct
5
Canon 6, Florida Code of Judicial Conduct
6
Id.
7
Canon 2 B., Florida Code of Judicial Conduct
8
S. 12(a)(1) and s. 12(c), Art. V, Fla. Const. The Court’s discipline powers are alternative and cumulative to the power of impeachment
and removal of justices and judges vested in the Legislature. S. 12(d), Art. V, Fla. Const., s. 17, Art. III, Fla. Const.
9
Florida Code of Judicial Conduct, available at
https://www.floridasupremecourt.org/content/download/402388/file/Code_Judicial_Conduct.pdf (last visited Jan. 16, 2022)
10
Canon 6 B., Florida Code of Judicial Conduct
11
Ss. 112.3215(3), 11.045(2), F.S. STORAGE NAME: h7003b.JDC PAGE: 3
DATE: 1/18/2022
member. It also includes any attempt to influence legislative action.
12
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.
13
That requirement does not affect communications
outside of the employer’s normal business hours.
14
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.
15
The executive branch
registration law is limited to lobbying on decisions in the area of policy or procurement.
16
The
Commission on Ethics (Commission) enforces executive branch lobbyist registration.
17
The
Commission has defined “policy” and “procurement” in rules implementing executive branch lobbying
registration.
18
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.
19
Under executive branch lobbying, exceptions include:
A person representing a client in a judicial proceeding or a formal administrative proceeding
under the Administrative Procedure Act
20
(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.
21
The state ethics laws also regulate gifts of lobbyists or their principals to reporting individuals and
procurement employees.
22
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.
23
Commission on Ethics
The 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.
24
State law designates the Commission as
12
S. 11.045(1), F.S., Joint Rule 1.1(2) (published with the House Rules).
13
S. 11.061(1), F.S.
14
Id.
15
S. 112.3215(1)(f), F.S.
16
Id.
17
Ss. 112.322, 112.324, F.S.
18
R. 34-12.020(9) and (11), F.A.C. Chapter 34-12, F.A.C. also supplies additional definitions and clarifies statutory exceptions.
19
Joint Rule 1.1(3) and (4).
20
Ch. 120, F.S.
21
S. 112.3215(1)(h), F.S.
22
S. 112.3148, F.S.
23
S. 112.324(4)-(8), F.S.
24
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 Jan. 16, 2022); see also s. 112.320, F.S. STORAGE NAME: h7003b.JDC PAGE: 4
DATE: 1/18/2022
the independent commission provided for in s. 8(f), Art. II of the state constitution.
25
Constitutional
duties of the Commission consist of conducting investigations and making public reports on all breach
of trust complaints towards public officers or employees not governed by the JQC.
26
In addition to its
constitutional duties, the Commission, in part:
Renders advisory opinions to public officials;
27
Makes recommendations to disciplinary officials when appropriate for violations of ethics and
disclosure laws;
28
Administers the Executive Branch Lobbying Registration and Reporting Law;
29
Maintains financial disclosure filings of constitutional officers and state officers and
employees;
30
and
Administers automatic fines for public officers and employees who fail to timely file required
annual financial disclosure.
31
Effect of Proposed Changes
Definitions
HB 7003 implements the constitutional lobbying prohibition for justices and judges vacating office,
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 justices and judges vacating judicial office on or after December 31, 2022. It provides for
administrative enforcement of the constitutional prohibition and establishes penalties for violating the
prohibition.
The bill defines “lobby,” “compensation,” and “legislative action” in a manner consistent with current
lobbying registration laws covering the legislative
32
and executive
33
branches. It defines “lobby for
compensation” in a manner consistent with the definition of “lobbyist” in both registration laws.
34
The bill
also defines “issue of policy” and “issue of procurement” consistent with current rules of the
Commission.
35
The bill defines “issue of appropriation” in a manner consistent with the appropriation power.
The bill defines “administrative action” as a category of decisions exempt from those covered by the
definition of “lobby.” This definition excludes procurement decisions, which are already expressly
prohibited by the constitutional provision. “Administrative action” includes Administrative Procedure Act
(“APA”) proceedings in state agencies. For any agency not governed by the APA, the definition
incorporates the following specific examples of administrative matters:
Any action or decision on a license, permit, or waiver of regulation; and
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 for compensation” expressly excludes
representation on a legal claim cognizable in court or other tribunal to include prelitigation offers,
demands, and negotiations. Together, these provide broader exemptions than those provided in the
25
S. 112.320, F.S.
26
S. 8(f), Art. II, Fla. Const.
27
S. 112.322(3)(a), F.S.
28
S. 112.322(2)(b), F.S.
29
Ss. 112.3215, 112.32155, F.S.
30
S. 112.3144, F.S.
31
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 Jan.
16, 2022).
32
S. 11.045(1), F.S.
33
S. 112.3215(1), F.S.
34
Ss. 11.045(1)(g), 112.3215(1)(h), F.S.
35
R. 34-12.020(9) and (11), F.A.C. STORAGE NAME: h7003b.JDC PAGE: 5
DATE: 1/18/2022
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 prelitigation 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” as an officer or agency of the executive or legislative
branches of state government.
Administration
The bill applies the constitutional prohibition to a justice or judge who vacates his or her judicial position
on or after December 31, 2022.
This bill deems a violation of the new constitutional prohibition to be a violation of the Code of Ethics
36
for purposes of administration. This authorizes the Commission to investigate and determine violations
raised in a written sworn complaint or a 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.
37
The bill provides penalties consistent with current penalties for prohibited lobbying and other prohibited
post-service representation.
38
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. The Chief Financial Officer and
Attorney General are each authorized to collect any penalty imposed.
The bill provides an effective date of December 31, 2022.
B. SECTION DIRECTORY:
Section 1: Creates s. 112.3123, F.S., relating to definitions.
Section 2: Creates s. 112.3124, F.S., relating to applicability, administration, penalties, and collection
thereof.
Section 3: Provides an effective date of December 31, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
36
Pt. III, Ch. 112, F.S.
37
S. 112.324, F.S.
38
S. 112.317(1)(d), F.S. STORAGE NAME: h7003b.JDC PAGE: 6
DATE: 1/18/2022
A small amount of funds may be generated for the general revenue fund from penalties collected for
violations of the lobbying ban.
2. Expenditures:
This bill may result in some expenditures for investigations of and hearings on violations by the
Commission on Ethics.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
The constitutional amendment provides that implementing legislation “shall not contain provisions on
any other subject.”
39
The bill neither amends nor incorporates other laws, thus 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:
Justice;
Judge;
Legislative branch; and
Executive branch.
Jurisdiction of the JQC and Impeachment
The JQC investigates allegations of judicial misconduct of current justices or judges. The
constitutional prohibition is applicable to former justices and judges. Thus, the JQC lacks
constitutional jurisdiction to enforce the post-service lobbying prohibition. Similarly, the Legislature’s
power to impeach and remove justices and judges would not reach post-service lobbying violations.
B. RULE-MAKING AUTHORITY:
No new rulemaking authority is created in the bill.
39
S. 8(f)(5), Art. II, Fla. Const. (effective December 31, 2022). STORAGE NAME: h7003b.JDC PAGE: 7
DATE: 1/18/2022
C. DRAFTING ISSUES OR OTHER COMMENTS:
The definitions in HB 7003 generally conform to definitions of identical terms in HB 7001, which
implements a distinct constitutional lobbying prohibition on certain public officers also included in the
2018 constitutional amendment addressed in this analysis. A few definitional differences arise from
distinctions in the amendments. The public officers provision reaches lobbying of a state governmental
body or agency, the federal government, and political subdivisions, in addition to the Legislature.
40
In
HB 7001, the term “governmental entity” includes all those entities. However, the prohibition on former
justices and judges implemented by HB 7003 extends to lobbying the “legislative or executive branches
of state government.”
41
For this reason, the term “governmental entity” in HB 7003 only includes
agencies and officers of the legislative and executive branches. Because of that narrower meaning, HB
7003 uses the term “public entity” in place of “governmental entity” used in HB 7001 to describe a
category of lobbyist clients that would include government offices outside the legislative and executive
branches. Also, because the scope of HB 7003 is narrower, the definition of “administrative action”
omits particular decisions of local governments.
IV. AMENDMENTS/COMMITTEE SUBST ITUTE CHANGES
On November 30, 2021, the Public Integrity & Elections Committee adopted an amendment to change the
proposed statute number for two new sections of law because the original bill unintentionally used a
section number already occupied in the Florida Statutes. This analysis is drawn to the bill as amended.
40
S. 8(f), Art. II, Fla. Const. (effective Dec. 31, 2022).
41
S. 13(b), Art. V, Fla. Const. (effective Dec. 31, 2022).