Opinion
No. 1D21-3115
02-01-2023
Patrick LOEBIG, Appellant, v. FLORIDA COMMISSION ON ETHICS, Appellee.
Jonathan W. Taylor, James F. McAuley, and Joseph C. Moffa of Moffa, Sutton, & Donnini, P.A., Fort Lauderdale; and E. Dylan Rivers of Ausley McMullen, Tallahassee, for Appellant. Grayden Paul Schafer, Assistant General Counsel, and Suhail Chhabra, Staff Attorney, Florida Commission on Ethics, Tallahassee, for Appellee.
Jonathan W. Taylor, James F. McAuley, and Joseph C. Moffa of Moffa, Sutton, & Donnini, P.A., Fort Lauderdale; and E. Dylan Rivers of Ausley McMullen, Tallahassee, for Appellant.
Grayden Paul Schafer, Assistant General Counsel, and Suhail Chhabra, Staff Attorney, Florida Commission on Ethics, Tallahassee, for Appellee.
Per Curiam.
Patrick Loebig, a former taxpayers’ rights advocate, appeals an advisory opinion issued by the Florida Commission on Ethics concluding that the Department of Revenue is his agency employer for purposes of section 112.313(9)(a)4., Florida Statutes. For the reasons that follow, we reverse.
I
Loebig is a former taxpayers’ rights advocate. Three statutes reference the position. First, section 20.21, Florida Statutes, titled "Department of Revenue," lays out the organizational structure of the Department. It states that "[t]he position of taxpayers’ rights advocate is created within the Department of Revenue." § 20.21(3), Fla. Stat. The second and third statutes are in chapter 213, Florida Statutes, which is titled "State Revenue Laws: General Provisions." Within that chapter, section 213.015 is the Florida Taxpayer's Bill of Rights, while section 213.018 details the taxpayer problem resolution program. Together, these three statutes describe the role of the taxpayers’ rights advocate: to resolve taxpayer problems and complaints that cannot be resolved through the Department's normal administrative channels. §§ 20.21(3)(a) ; 213.015(2); 213.018, Fla. Stat.
The taxpayers’ rights advocate has the authority to issue a taxpayer assistance order suspending or staying the Department's actions as an extraordinary measure to prevent a taxpayer from suffering significant hardship. §§ 20.21(3)(b) ; 213.015(2); 213.018(2), Fla. Stat. The Department's executive director is tasked with staffing the taxpayer problem resolution program. § 213.018(1), Fla. Stat. And under the version of these statutes in place for most of Loebig's career, the taxpayers’ rights advocate was appointed by and reported to the Department's executive director. See §§ 20.21(3), 213.018(1), Fla. Stat. (2001).
In 2018, the Florida Legislature amended sections 20.21(3) and 213.018(1) to give the Chief Inspector General ("CIG") the power to appoint, direct, and remove the taxpayers’ rights advocate. See ch. 2018-118 §§ 1–2, 39, Laws of Fla. But the advocate remains under the "general supervision of the executive director [of the Department] for administrative purposes." Id. at § 1. The amendment also requires the advocate to prepare an annual report addressing the most common problems encountered by taxpayers and making recommendations to resolve those problems. Id. The advocate submits this report to the Governor, the CIG, the President of the Florida Senate, and the Speaker of the Florida House, but not the Department. Id. Section 213.053, Florida Statutes, which governs the confidentiality of the Department's records, was also amended to provide the advocate access to those records. See ch. 2018-118 § 40, Laws of Fla.
During Loebig's employment as the advocate, he requested an advisory opinion from the Commission about how section 112.313(9)(a)4., Florida Statutes, would apply to him if he decided to leave the taxpayers’ rights advocate position. The Florida Code of Ethics, chapter 112, part III, Florida Statutes, governs the conduct of public officers and employees. Under section 112.313(9)(a)4., an agency employee is prohibited from representing another person or entity for compensation before his or her agency employer for two years after leaving his or her employment. Loebig acknowledged that he was an employee subject to this provision. But in the wake of the 2018 amendments, he was unsure whether his agency employer was the Department or the CIG within the Executive Office of the Governor.
Loebig explained that as the taxpayers’ rights advocate, he had daily interactions with the tax law specialist in the advocate's office, as well as the following Department personnel: General Counsel's Office, the Technical Assistance and Dispute Resolution Office, the General Tax Administration Program staff, and sometimes the Executive Director's Office.
After the 2018 amendments, the advocate was no longer eligible to attend meetings of the Department's senior leadership, and the Department sent correspondence to Loebig in care of the Office of the CIG. Loebig explained that while his duties required him to make recommendations in defense of taxpayers’ rights, the Department was not required to adopt those recommendations, and he lacked the authority to enforce recommendations that had not been adopted. Although he retained the power to issue stays of Department action or proposed action, that was an extraordinary measure and no such order had been issued since 2008.
In the past, the Department had a standing records request to receive a copy of his annual report. But after the 2018 amendments, it was no longer one of the parties entitled to receive a copy. Now when the Department's executive director requested a preliminary copy of his report, Loebig said that the CIG ordered him to provide one. Further emphasizing the advocate's new independence from the Department, the Legislature added a statutory exception for that position allowing it access to Department records that were otherwise confidential and not subject to disclosure. Loebig argued the amendment would not have been necessary if he remained a Department employee.
In a follow-up email to the Commission providing details about his position, Loebig explained that as his administrative supervisor, the Department approved requests for leave and provided staff, materials, and office space for his position. His office is in the office buildings that house the Department and two other agencies. He met with the Department's executive director and other staff monthly to discuss taxpayer contracts, problems, and process improvement recommendations. But the Department's executive director had no influence over his handling of taxpayer complaints.
The Commission issued an advisory opinion concluding that the Department was Loebig's agency employer for purposes of section 112.313(9)(a)4. The Commission acknowledged the CIG's authority to appoint, direct, and terminate the taxpayers’ rights advocate. But it found the matter of which official appoints an employee to be irrelevant, as officials from different government bodies are often responsible for appointing employees to positions in other government bodies.
The Commission observed that even after the 2018 statutory amendments, the taxpayers’ rights advocate is housed within the Department and administratively supervised by the Department. The Department pays the advocate's salary, maintains the P.O. Box where the advocate receives his W-2 forms, and maintains the advocate's webpage on the Department's website. The Department also includes the advocate in its organizational membership lists submitted to the Commission for financial disclosure purposes. And the Commission found that the advocate's substantive responsibilities focus solely on Department actions, requiring regular interactions with Department officials and staff. According to the Commission, this contact gives the advocate significant influence throughout the agency. Because a goal of section 112.313(9)(a)4. is to prevent "influence peddling, which occurs when former public employees use their previously-held positions to create opportunities for personal profit," the Commission determined that the Department was the advocate's agency employer under the statute. This timely appeal followed.
II
We review an agency's interpretation of the law de novo. 1701 Collins Miami Owner, LLC v. Dep't of Rev. , 321 So. 3d 875, 878 (Fla. 1st DCA 2021) ; Art. V, § 21, Fla. Const. ("In interpreting a state statute or rule, a state court ... may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo.").
"[T]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Conage v. United States , 346 So. 3d 594, 598 (Fla. 2022) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). And because the Code of Ethics is penal in nature, it must be strictly construed with doubts being resolved in favor of the employee. City of Miami Beach v. Galbut , 626 So. 2d 192, 194 (Fla. 1993).
Section 112.313(9)(a)4., Florida Statutes, imposes post-employment restrictions on former public employees. This provision provides that "[a]n agency employee ... 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."
But the statute does not define "employed" or give any criteria for determining what agency a person is employed by for purposes of this statute. When a term is undefined by a statute or case law, "judges must ‘exhaust "all the textual and structural clues" ’ that bear on the meaning of a disputed text." Conage , 346 So. 3d at 598 (quoting Alachua County v. Watson , 333 So. 3d 162, 169 (Fla. 2022) ).
The Legislature has expressed an intent in the Code of Ethics that "public office not be used for private gain other than the remuneration provided by law." § 112.311(1), Fla. Stat. But it has also said that highly qualified people should not be discouraged from serving as public officials due to unreasonable restrictions on their opportunities in the private sector:
It is also essential that government attract those citizens best qualified to serve. Thus, the law against conflict of interest must be so designed as not to impede unreasonably or unnecessarily the recruitment and retention by government of those best qualified to serve. Public officials should not be denied the opportunity, available to all other citizens, to acquire and retain private economic interests except when conflicts with the responsibility of such officials to the public cannot be avoided.
Id. at (2). "It is the intent of this act to implement these objectives of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service." Id. at (4).
Elsewhere, the statute gives an expanded definition of a former local officer's "government body or agency" when imposing post-employment restrictions on those officers. § 112.313(14)(a)–(b), Fla. Stat. By contrast, the Legislature did not include a similar definition of the "agency" employing the taxpayers’ rights advocate when it amended the laws and restructured that position. This suggests that the Legislature did not intend for the Department to remain a barrier to post-employment opportunities when it transferred control of the advocate's position to the CIG.
Here, the advocate occupies a unique position in public service. While the Department continues to provide administrative support to the advocate, the Legislature has segregated that position from the Department and transferred control of the advocate's duties to the CIG. And the advocate maintains an adversarial relationship with the Department, advocating on behalf of the public.
The Department cannot hire or fire the advocate, nor can it direct the manner of his work. The Department is no longer entitled to a copy of his annual report. Instead, the CIG orders him to provide a copy to the Department if it requests one. The advocate no longer attends meetings with the Department's senior leadership, and a statutory amendment was required to give him access to confidential taxpayer records after the position was placed under the authority of the CIG. The Department is not required to adopt his recommendations, and he cannot enforce his recommendations if the Department does not adopt them.
While the advocate is placed "within" the Department by statute and his office is in its building, no one at the Department has the authority to supervise or direct his substantive duties. Instead, the Department provides him with administrative support, maintains his P.O. Box and webpage, and includes him in its organizational lists. Although the Department pays his salary, that is a ministerial act. The advocate reports to the CIG, and the CIG determines whether he gets paid by hiring or firing him.
In sum, the Department now helps the advocate carry out his duties but has no control over those duties. See Crapo v. Academy for Five Element Acupuncture, Inc. , 278 So. 3d 113, 118 (Fla. 1st DCA 2019) (holding that although a statute created and placed the Commission for Independent Education within the Department of Education, the Commission was still independent from the Department because, in part, the Commission had its own authority and its members were appointed through the Governor and Senate rather than the Commissioner of Education).
The Commission also found that the advocate has significant influence throughout the Department because he regularly interacts with Department staff and officials. But the advocate intercedes on behalf of taxpayers in disputes with the Department. Unlike employees who guide and manage the operations of their agencies or agency leaders who command loyalty and enforce directives, the advocate's duty is to defend the rights of taxpayers against the Department. That watchdog position, along with the structure and level of segregation described above, does not produce a conflict with his responsibility to the public if he were to represent those same taxpayers before the Department in the private sector after he leaves the position.
This interpretation is also consistent with tort law principles. In the past, this Court has applied tort law principles to define an employment relationship when interpreting the Code of Ethics. Interpreting the prohibition in section 112.313(10), Florida Statutes (1978), which prohibits an active employee of a political subdivision from serving on that subdivision's governing board, this Court relied on a definition of "employee" that emphasized control:
An employee is one who for a consideration agrees to work subject to the orders and direction of another, usually for regular wages but not necessarily so, and, further, agrees to subject himself at all times during the period of service to the lawful orders and directions of the other in respect to the work to be done.
Wright v. State Comm'n on Ethics , 389 So. 2d 662, 663 (Fla. 1st DCA 1980) (quoting City of Boca Raton v. Mattef , 91 So. 2d 644, 647 (Fla. 1956) ). This Court acknowledged that Mattef was a tort law case addressing an employer-employee relationship but concluded that it provided "an appropriate analytical framework" for construing section 112.313(10). Id .
As a matter of ordinary meaning, an employee is defined as "[a] person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed." Employee , Black's Law Dictionary (6th ed. 1990); see Conage , 346 So. 3d at 599 (reaffirming that courts typically look to dictionaries for the best evidence of a word's ordinary meaning). Control matters because it identifies whose orders and direction the employee has agreed to subject himself to in exchange for wages. Here, the taxpayers’ rights advocate is subject to the orders and direction of the CIG.
The statute also identifies other potential conflicts involving degrees of control by an agency employee. Section 112.313(3) prohibits an agency employee from purchasing, renting, or leasing land, goods, or services for his agency from businesses that his family members have a material interest in. Section 112.313(7)(a) prohibits an agency employee from working for a company that is regulated by or doing business with the agency. Elsewhere, sections 112.3185(3)–(4) restrict a former agency employee from working for a company in connection with any contract that the employee had an active role in securing. Section 112.3185(6) prohibits an agency employee from directing agency contracts to businesses that his family members have a material interest in. And section 112.3135(2)(a) prohibits an agency employee from hiring or promoting a relative to a position in the employee's agency.
These examples suggest that corruption or the risk of corruption by public officials flows from relationships based on control or influence. Conflicts of interest can arise in government employment relationships when one exercises control over, or is subject to control by, another. The taxpayers’ rights advocate has no such control or influence over or within the Department. Nor is that unique position subject to such control or influence by the Department. This understanding of "employed," as the term is used in section 112.313(9)(a) 4., preserves the statute's internal consistency together with other sections in the Code of Ethics addressing conflicts of interest for agency employees.
III
Finally, we close by acknowledging that the Commission has advanced sound arguments in support of its interpretation of the statute. This is a difficult case. But even if we were to find that the term "employed" is ambiguous—that is, susceptible of more than one plausible interpretation—we must resolve the ambiguity in favor of strict construction. Galbut , 626 So. 2d at 194 ("When a statute imposes a penalty, any doubt as to its meaning must be resolved in favor of strict construction so that those covered by the statute have clear notice of what conduct the statute proscribes."); Smith v. United States , 508 U.S. 223, 246, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993) (Scalia, J., dissenting) ("Even if the reader does not consider the issue to be as clear as I do, he must at least acknowledge, I think, that it is eminently debatable—and that is enough, under the rule of lenity, to require finding for the petitioner here."). We therefore decline to hold Loebig to a standard that, at a minimum, is subject to competing reasonable interpretations.
REVERSED .
Lewis, B.L. Thomas, and Ray, JJ., concur.