CEO 02-17 -- October 30, 2002
FORMER FDOT EMPLOYEE EMPLOYED BY FIRM IN CONNECTION WITH FIRM'S RESEARCH FOR FDOT
To: Mr. Theo Petritsch, former FDOT Central Safety Office Pedestrian and Bicycle Coordinator (Lutz)
A former employee of the Florida Department of Transportation (FDOT) is not prohibited by Section 112.3185(3), Florida Statutes, from working with a firm contracting with FDOT. Under the facts submitted, the employee's public-job-capacity participation regarding the contract was not "substantial." CEO's 00-6, 95-19, and 93-2 are referenced.
Would Section 112.3185(3), Florida Statutes, be violated were you, a former employee of the Florida Department of Transportation (FDOT), to have or hold employment with a firm contracting with FDOT to conduct research to evaluate the effectiveness of innovative roadway traffic safety treatments?
Under the facts of your inquiry, your question is answered in the negative.
By your letter of inquiry, additional correspondence between you and our staff, and documents and factual detail regarding your situation provided to our staff by your attorney subsequent to our staff's initial review of this matter, we are advised that you resigned your employment with the Florida Department of Transportation (FDOT/Department), after twelve years of service, in order to expand your career opportunities. Subsequent to resignation, you advise, you sought and obtained employment with a consulting firm in Tampa. Further, you advise that the firm would like to submit a proposal (with you assigned as staff engineer, under the direction of their project manager) to work on an upcoming FDOT Central Safety Office research project titled "Evaluation of Innovative Safety Treatments." Additionally, you advise that although you participated while at FDOT regarding the project, proposals have not been submitted, the consultant has not been selected, and no contract for the work has been entered into.
You advise that when proposals are received by FDOT, a team of Safety Office employees, including two members from the Central Office and three members from District Offices, will select a firm or university to conduct the research; that the selection process involves each team member (acting individually--the members are not allowed to discuss the proposals) filling out an evaluation form for each proposal; that all the evaluation forms are averaged, with the firm or university receiving the highest score being awarded the contract; that you will in no way be involved in the selection process; and that after a contractor is selected, a "scope of services" is prepared for inclusion in the final contract. In addition, you advise that the project was not a consideration in your decision to change your career track from the public sector to the private sector and that the firm had been unaware that you were resigning from FDOT and did not approach you for employment until after you submitted your written resignation to the State Safety Engineer.
Further, we are advised in detail, through your attorney's letter and accompanying documents, of the process leading to the selection of a contractor to perform the research, all of which resides in our public file in this matter and most of which it is unnecessary to restate herein. However, suffice it to say that the information provided shows a multi-step procurement process for the contract, involving many persons and entities, with very limited involvement on your part as an employee of FDOT. Your attorney writes:
Mr. Petritsch's only responsibility was to knock out the initial rough draft and thereafter to seek input and comments from more experienced team members. Then, based on those comments, he revised the document to reflect their comments. He, at this point, was no more than a scrivener who had been delegated the responsibility to incorporate the recommendations of others. To do this, Mr. Petritsch sat in the office[s], most often of [the State Safety Engineer] and [the State Transportation Safety Engineer], went over the various drafts, made notes, and then went back and incorporated their recommendations. . . .
The involvement of Mr. Petritsch in the development of the [request for proposals (RFP)] currently on the street, which was issued by [the Department of Management Services (DMS)], can hardly be considered substantial. Especially since the qualitative nature of his personal involvement in putting together the FDOT document was very limited. In fact, it was limited to the extent that his input to the original document consisted of little more than following an outline format used regularly by the FDOT for research projects, with incorporation of substantial boilerplate language. Any additional language was the result of significant input from [the State Safety Engineer] and to a lesser degree [the State Transportation Safety Engineer], later consensus from the Safety Research Review Team and final decision by the standing research committee as to the content of the RFP.
Mr. Petritsch describes his 'involvement' in the drafting process as only being involved in the preliminary stages in which he knocked out the outline boilerplate in about two hours with the balance of his total time spent meeting with [the State Safety Engineer] and [the State Transportation Safety Engineer] and thereafter incorporating their revisions to the document as a scrivener.
. . . Mr. Petritsch's intellectual input, as it relates to the need to have expertise in the preparation of a research needs statement or scope of research[,] is nonexistent with regard to the RFP he worked on due to the nature of the research project. . . . Mr. Petritsch was not involved at all in the approval or disapproval of the project. In fact, the standing research committee had the authority to substantially modify or even reject the document once it was presented to them.
Further, in addition to your limited involvement indicated above, we are advised that the RFP on which you worked was withdrawn and the Department of Management Services (DMS) prepared and "put on the street" a different RFP for this "'innovative research'," that the DMS RFP is significantly more detailed than the document on which you worked, and thus that the RFP to which responses are actually being prepared is not the RFP on which you worked. In essence, we are advised and you argue that the project is so broad that even the contractor selected may be unable to perform the work, that the project is not a typical proposal seeking goods or services of such a definite nature that those involved could tailor the criteria to their or their companies' abilities to successfully acquire and perform a contract, and, therefore, that your situation is not one susceptible to the "feathering one's own nest/golden parachute" actions that the statute is designed to prevent.
Section 112.3185(3), Florida Statutes, provides:
No agency employee shall, after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee.
This statute would prohibit your working for the firm after leaving FDOT in connection with a contract for the project, if, while a FDOT employee, you participated personally and substantially regarding the contract. See, for example, CEO 95-19.
In your situation, we find that you personally participated regarding the procurement process; but we do not find that your participation was "substantial." Your limited involvement in the procurement process, the multi-stage nature of the process, the subordinate nature of your role in the process to that of others, and the withdrawal/substitution of the RFP on which you performed limited work in favor of a DMS RFP on which you did no work render your situation analogous to a number of situations in which we have found Section 112.3185(3) not to be applicable. See CEO 00-6 (former public employee's public agency role limited to acting as a facilitator in the first phase of the process), CEO 95-19 (former AHCA employee who reviewed language, compared it with required language, and requested supplementation when necessary), and CEO 93-2 (former FDOT Florida Turnpike Transportation Specialist who reviewed drafts of reports and made corrections or changes necessary to ensure the accuracy of information in the drafts).
Accordingly, we find that Section 112.3185(3), Florida Statutes, does not prohibit your working for the firm should it be awarded the FDOT contract.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 25, 2002 and RENDERED this 30th day of October, 2002.
Employment in FDOT's Central Safety Office as Florida's Pedestrian and Bicycle Coordinator (a Career Service position). Last day of FDOT employment July 18, 2002.
You advise that you were involved with writing an initial research needs statement for a research project to evaluate the effectiveness of innovative roadway traffic safety treatments; that the statement provides a very broad description of the project and solicits proposals from universities or consultants who are interested in performing the research without identifying specific problems or treatments to be studied; that you worked with the State Transportation Safety Engineer to draft the statement; that proposals for the project were due August 15, 2002; and that as of July 18, 2002, no proposal has been received.
Dated September 26, 2002.
Former Governor's Office and Department of Transportation employee.