CEO 18-01—January 24, 2018
APPLICABILITY OF POSTEMPLOYMENT RESTRICTIONS TO
FORMER FLORIDA HOUSING FINANCE CORPORATION EMPLOYEE
To: Name withheld at person's request (Tallahassee)
The requestor of this opinion is not a former "employee," as defined in Section 112.313(9), Florida Statutes, and is therefore not subject to its two-year representation restriction. Neither is he subject to the restrictions of Section 112.3185, Florida Statutes. CEOs 14-31 and 17-07 are referenced.1
What postemployment restrictions of the Code of Ethics (Part III, Chapter 112, Florida Statutes) are applicable to you following your vacation of position at the Florida Housing Finance Corporation?
Your question is answered as set forth below.
In your inquiry, you write that you are a former employee of the Florida Housing Finance Corporation (FHFC) who began your FHFC employment in December 2014. From that time until May 2016, you were a salaried employee with the title of Policy Administrator. From May 2016 through June 2017, you were paid hourly and worked under a telework agreement as an Adjunct Policy Administrator (so titled for human resources purposes but with no change from your duties as Policy Administrator). You characterize all of your FHFC employee work as "ministerial," stating you were never asked to offer an opinion to an elected or appointed official on any question of policy, and that your work was mainly limited to researching technical topics impacting multifamily programs, and then advising a few senior managers and staff who drafted Requests for Applications (RFAs). You state that unlike other FHFC administrators, you had no supervisory responsibilities. Throughout your employment, you reported to the Director of Housing Policy and Special Programs, administered the Multifamily Energy Retrofit Program, contributed language for draft RFAs, and monitored changes in federal regulations which impacted FHFC programs.You advise that you were occasionally involved in the procurement process, when it related to other areas of your work, and never advised the FHFC Board or presented any Board agenda item. You state you attended a few meetings with Legislators and individual Board members to answer technical questions with members of the FHFC senior management team (whom you describe as the "actual meeting participants"), and met only once with a Board member—to answer questions regarding the impact of a program change on a particular county.
Since leaving FHFC, you have entered into a consulting agreement with a real estate developer, from another state, who wants to enter into such business in Florida. Your consulting involves preparing applications to FHFC, attending public meetings held by FHFC, and communicating with FHFC staff. You ask whether Section 112.313, Florida Statutes, prohibits you from such consulting and, if so, the duration of the prohibition.
The prohibition relevant to your inquiry is codified in Section 112.313(9)(a)4, Florida Statutes. It provides:
An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, 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.
For purposes of the prohibition, Section 112.313(9)(a)2.a., Florida Statutes, defines "employee" as:
(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.
(II) The Auditor General, the director of the Office of Program Policy Analysis and Government Accountability, the Sergeant at Arms and Secretary of the Senate, and the Sergeant at Arms and Clerk of the House of Representatives.
(III) The executive director of the Legislative Committee on Intergovernmental Relations and the executive director and deputy executive director of the Commission on Ethics.
(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title.
(V) The Chancellor and Vice Chancellors of the State University System; the general counsel to the Board of Governors of the State University System; and the president, provost, vice presidents, and deans of each state university.
(VI) Any person, including an other-personal-services employee, having the power normally conferred upon the positions referenced in this sub-subparagraph.
We have found that FHFC is an "agency" for purposes of Section 112.313, Florida Statutes (see CEO 17-07). As you held a position in FHFC, and your consulting obviously encompasses "representation"2 within the meaning of Section 112.313(9)(a)4, the essential issue is whether you were an "employee" within the meaning of Section 112.313(9)(a)2.a. The only portions of the definition possibly applicable to you are those of Section 112.313(9)(a)2.a.(I) [Selected Exempt Service (SES) or Senior Management Service (SMS)] and Section 112.313(9)(a)2.a.(VI) [any person, including an other-personal-services (OPS) employee, having the power normally conferred upon a SES or a SMS position].
We find that you are not encompassed within the definition and, thus, are not subject to the restriction of Section 112.313(9)(a)4. According to information provided by FHFC, you were not in a SES or a SMS position, and no position you occupied at FHFC was given any designation (SES, SMS, OPS, Career Service, or other) by the Department of Management Services (DMS). Further, we are aware of nothing in Chapter 110, Florida Statutes (STATE EMPLOYMENT),3 Chapter 420, Florida Statutes (HOUSING), or other law which would support your having been in the SES, SMS, or their equivalent.4 Although one might argue that you were highly-placed at FHFC and thus should be subject to the two-year representation restriction, we are bound by the law and the facts of your situation. In this regard, your situation is similar to that of the Administrative Law Judge (ALJ) in CEO 14-31 who, although he unquestionably held a lofty position, was nevertheless not in a SES, SMS, or equivalent position.
Accordingly, we find that you are not subject to the two-year representation restriction of Section 112.313(9)(a)4, Florida Statutes.5
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 19, 2018, and RENDERED this 24th day of January, 2018.
Michelle Anchors, Chair
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
Defined in Section 112.312(22), Florida Statutes:
"Represent" or "representation" means 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 communications made with the officers or employees of any agency on behalf of a client.
See Section 110.205(2), Florida Statutes, which lists in detail the positions exempted from Career Service.
We recognize that Section 420.5061, Florida Statutes, provides that "For purposes of s. 112.313, the corporation [FHFC] is deemed to be a continuation of the agency [Florida Housing Finance Agency], and the provisions thereof are deemed to apply as if the same entity remained in place." However, applicability of Section 112.313 does not mean that the requestor of this opinion or any other particular person who worked at FHFC met or meets the definition of "employee" in Section 112.313(9)(a)4. Neither does the reference in Section 420.5061 to the "grandfather clause" of Section 112.313(9)(a)6, Florida Statutes, mean that the requestor or any other particular person is within the definition.
We also find that you are not subject to the restrictions of Section 112.3185, Florida Statutes. See CEO 17-07.