By Jake Martin
Posted Dec 10, 2016 at 7:01 AM



The Florida Commission on Ethics on Friday adopted an advisory opinion on whether former St. Johns County Commissioner Rachael Bennett could engage in certain, various activities within two years of vacating her public position.
In a letter of inquiry dated Oct. 28, Bennett questioned to what extent the two-year prohibition on lobbying by former local officers, outlined in Florida Statute 112.313(14), would limit her from representing clients of her consulting business before the county once her term as commissioner came to a close on Nov. 22.
As written in the statute: “A person who has been elected to any county, municipal, special district, or school district office may not personally represent another person or entity for compensation before the government body or agency of which the person was an officer for a period of 2 years after vacating that office.”
This prohibition extends to communications with commissioners or the board as a whole, the county administrator, and the “immediate support staff” of the commission and/or administrator.
Ethics commission staff, in their draft opinion, said the restrictions would apply inside and outside of public meetings. They also said the statute also does not distinguish between different types of clients, and, thus, the prohibition would apply to all clients.
The term “represent,” as it relates to the statute, is defined as “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 communication made with the officers or employees of any agency on behalf of a client.”
The draft opinion referenced a previous opinion of the Commission on Ethics in which it refused to limit the prohibition, reading as follows: ”[s]uch an interpretation would render the statute a nullity, as it would have the absurd effect of prohibiting former officials form representing clients in a public meeting of the body on which they served, while allowing them to meet privately, one-on-one and behind the scenes with the very same persons or, in what would amount to almost the same thing, their aides.”
Staff also said the restrictions would apply to representations of clients for compensation before boards other than the County Commission on which a member of the County Commission also serves.
There was some wiggle room, however.
Bennett would be allowed to represent clients on behalf of her company before county staff not identified within the statute’s parameters and/or before the county’s Planning and Zoning Agency, notwithstanding that decisions made by that board are automatically reviewed by the County Commission.
Ethics commission staff said applying the prohibition to these scenarios would “deprive” Bennett of the ability to represent clients before persons and entities not identified in the statute “because of circumstances outside your control (i.e., a County Commissioner attending the meeting in his own volition).”
“This we decline to do,” the draft opinion continues. “While we are mindful of the potential for abuse in this scenario, we believe such potential is mitigated in that the prohibition would prevent inviting a County Commissioner to attend as an audience member.”
The prohibition, as staff interpreted it, does not prevent a former officer from representing his or her own private interests.
“Therefore, attendance at the portion of a Commission meeting at which an issue of private interest and unconnected with your LLC or a client would be heard will not trigger the statute,” the draft opinion reads. “However, the statute would prohibit your attendance at any part of the meeting affecting your LLC or a client.”
Staff also said the statute only prohibits “personal representations” and does not speak to representations made by others.
“If you are serving on a team that is presenting an argument or application on behalf of a client to the County Commission, but you remove yourself from having any of the prohibited contact with the County Commission, we do not find you will have engaged in a prohibited representation,” the draft opinion reads. “Offering input or advice to the team, or being named as a team member in documents submitted to the County Commission would not fall within the prohibition.”
However, ethics commission staff warned against attendance at the meetings, signing or filing documents with the county, or communicating with any of the statutorily-articulated persons or entities on behalf of the team.
Bennett was granted limited ability to serve as an expert witness before the County Commission.
Staff said responsibilities of expert witnesses hired by third parties are different from those of attornies or advocates hired to represent clients. However, testifying as an expert for a team on which Bennett or her company is a member would be considered advocating on behalf of the team or its client, and, thus, constitute a prohibited act.
Bennett was also granted the ability to apply for appointment by the County Commission to an advisory board.
In a letter of response dated Dec. 4, Bennett said she protested the advisements of the draft opinion, claiming ignorance of jurisprudence, denial of constitutional rights granted by the First Amendment and reliance on precedent opinions that may be antiquated or in error.
Bennett said jurisprudence recognizes the difference between a natural person (“an individual human being”) and legal person (“an LLC”), and that the ethics commission’s interpretation of the phrase “personally represent” was, therefore, “unsupported and overly broad and capricious”.
She referenced the ethics commission’s finding that it would be permissible for her to become an employee of the county (and, thus, work for the county administrator and potentially report to the County Commission on his behalf).
“Your implication is that my acting on behalf of a private sector entity or person is assumed to have unethical intent, but my acting on behalf of a public-sector entity (a County Administrator) does not,” Bennett wrote. “Please note that in both cases, I receive compensation for my efforts, and in both cases I would be acting in the capacity of my profession.”
Bennett said the First Amendment is a basic right of all citizens to interact with their government and that the Constitution does not distinguish rights based on compensation.
“You deny me the right to speak based on content,” she wrote. “You have denied my right to peaceably assemble in a public government venue, and you have denied my right to free speech and you have prevented my right to petition my government.”
On precedence, Bennett also said just because something was “opined” in the past doesn’t mean it’s safe to assume it’s within the bounds of the law or that it’s either ethical or moral.
“Consider the old laws (not just opinions) allowing slavery as well as the former opinions that certain natural people were not people at all - they were property,” she wrote. “Certain precedent laws and opinions were errors (great or small), and should not be perpetuated.”
Bennett said a “strict” interpretation of the Florida Statutes, coupled with “Sunshine” regulations regarding open government, is enough to protect the public interest, but that ethics commission staff’s interpretation had the opposite effect.
“It is likely that your overly broad interpretation of the statute would find many in the state in a condition of unintended violation of the law - simply because your interpretation is overly broad and has no basis in the ‘real life’ scenarios of people and government in small and medium sized counties,” she continued.
Bennett said she had “no desire” to become a lobbyist and that she is a planner, plain and simple.
“To be considered guilty of unethical behavior without precedent action is unconscionable,” she wrote. “If the Commission upholds your opinion, I have no alternative but to live within the unreasonable restrictions you have placed on my ability to make a living in my chosen profession of planning, and your overly broad interpretation of the intent of the law. I will do so, but will do so under protest.”
A spokeswoman for the Florida Commission on Ethics said the commission on Friday adopted the draft opinion as written, making no changes. She said Bennett had the opportunity to address the commission but was not in attendance.
Bennett is the sole managing member and employee of a limited liability company called Cogito. In her letter of inquiry, she said the company was formed in 2011, before she qualified to run for office in the 2012 election, and that the company is not currently working on projects in the county.
According to Bennett, the company offers clients various property management and entitlement services, including ad valorem taxation status management, tax certificate management and management of entitlement teams (comprised of attorneys, surveyors, environmental scientists and civil engineers).
At the end of her inquiry, Bennett noted she is not yet of a retirement age and needs to continue making a living in the profession in which she has been involved for 17 years. (Bennett has previously worked for the county as assistant zoning manager, engineering firm England, Thims &Miller Inc., as senior planner, and The Hutson Companies LLC, as planner and vice president.)
She served just one term, representing District 5, encompassing much of the St. Augustine area up to International Golf Parkway. She withdrew her bid for re-election to her seat on Feb. 29, citing personal reasons relating to her family, health and future.