Loebig v. Fla. Comm'n on Ethics

• Decision Date: 01 February 2023
• Docket Number: 1D21-3115
• Parties: PATRICK LOEBIG, Appellant, v. FLORIDA COMMISSION ON ETHICS, Appellee.
• Court: Florida District Court of Appeals

PATRICK LOEBIG, Appellant, v. FLORIDA COMMISSION ON ETHICS, Appellee.

No. 1D21-3115

Florida Court of Appeals, First District

February 1, 2023

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

On appeal from an advisory opinion of the Florida Commission on Ethics. John Grant, Chair.

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 (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 postemployment 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...