CEO 02-1 -- January 29, 2002

 

POST-EMPLOYMENT RESTRICTIONS

 

DEPARTMENT OF TRANSPORTATION EMPLOYEE TRANSFERRED TO SELECTED EXEMPT SERVICE STATUS FROM CAREER SERVICE STATUS APPEARING BEFORE THE DEPARTMENT WITHIN TWO YEARS OF LEAVING EMPLOYMENT

 

To:       (Name withheld at person's request.)

 

SUMMARY:

 

Section 112.313(9)(a)4, Florida Statutes, does not prohibit a Selected Exempt Service employee whose position was recently reclassified from a Career Service System position from personally representing another person or entity before his agency for two (2) years from the date that he vacates his position.  The lack of a "clear and unequivocally expressed intention" by the Legislature that its en masse transfer of Career Service System employees to the Selected Exempt Services would subject them to the two year prohibition of Section 112.313(9)(a)4, Florida Statutes, coupled with the impairment of job expectations arrived at by the employees prior to the Legislature's enactment of Chapter 2001-43, Laws of Florida [the Governor's Service First Initiative],  requires a finding that the two year prohibition does not apply under these circumstances.

 

The Legislature is strongly urged to revisit its transfer of Career Service System employees to the Selected Exempt Services and expressly determine whether it intends for the two year prohibition of Section 112.313(9)(a)4 to apply to those employees.

 

QUESTION:

 

Are you, a Department of Transportation employee whose position recently was reclassified from Career Service to Selected Exempt Service without any break in your employment, subject to the two-year "revolving-door" prohibition against representing clients before the District of the Department of Transportation by  which you are employed after you leave your position?

 

Under the circumstances presented, your question is answered in the negative.

 

In your request for an opinion, you advise that your position as an Engineering, Architectural, and Surveying Level VI employee, also known as a Resident Engineer, with the Florida Department of Transportation ("DOT"), District Four, recently was reclassified from a Career Service System position to a Selected Exempt Service System position.  You write that up until your position's reclassification in July, 2001 pursuant to Chapter 2001-43, Laws of Florida, you had been a Career Service System employee since you first started working for the Department in May of 1991.

Our review of copies of your written Career Service System Position Description and your written Selected Exempt Service Position Description indicate that your duties and responsibilities have remained the same.  Under both classifications, you were and are responsible for performing "highly advanced professional work in highway engineering," and for "contract administration of DOT construction projects and overall management of the Resident Construction Office and personnel" in your assigned county.  Among your duties were and are the following:

 

‚                   Administering and contracting with engineering and inspection personnel on all DOT construction projects assigned to your area; making sure that inspection integrity and contract compliance with specifications and plan requirements are met; coordinating job assignments of personnel; and overseeing the availability of the necessary equipment, vehicles, and supplies required by the personnel who are directly responsible for accomplishing the assigned work;

‚                   Holding meetings with contractors; reviewing and taking part in decisions involving contract and specification interpretations, including the scope and intent of contracts, changed conditions, supplemental agreements, and claims and/or disputes; initiating documentation; negotiating supplemental agreements, and making recommendations on time extensions and claims; and

‚                   Supervising the administration of the Resident Construction Office; and reviewing and/or preparing such documentation and correspondence as letters, memoranda, inspection reports, supplemental agreements, change orders, and estimates.

 

Now that your position has been reclassified as a Selected Exempt Service position, you are concerned whether the  prohibitions of Section 112.313(9)(a)4, Florida Statutes, would apply to you were you to leave employment with DOT.  In other words, since the two-year prohibition of Section 112.313(9)(a) would not have applied had you left employment while your position was within the Career Service System, you question whether the prohibition should be applied now, when you did not voluntarily take a position in the Selected Exempt Service.  You also request that we discuss the applicability of Section 112.3185, Florida Statutes, to you upon your vacating your position with DOT.

 

SECTION 112.313(9)(a), FLORIDA STATUTES

 

Section 112.313(9)(a) provides as follows:

 

POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--

(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.

2. As used in this paragraph:

a.  'Employee' means:

(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.

.   .   .   .   .

4. No agency employee shall 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.

.   .   .   .   .

6. This paragraph is not applicable to:

a. A person employed by the Legislature or other agency prior to July 1, 1989;

b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;

c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;

d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or

e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995.  [E.S.]

 

The prohibition of Section 112.313(9)(a)4 applies to each agency "employee," as that term is defined at Section 112.313(9)(a)2.  That definition includes persons who are employed in Selected Exempt Service positions, such as the position you currently hold.  The statute prohibits each agency "employee" from representing another person or entity for compensation before the agency with which he or she was employed for a period of two years after leaving employment with the agency, unless one of the "grandfather" provisions contained in Section 112.313(9)(a)6 applies.  Although you currently are employed in a specified position and although it does not appear that any of the express provisions of Section 112.313(9)(a)6 would apply to "grandfather" you from the applicability of the prohibition, we are of the opinion that the prohibition would not apply to you or to others whose positions were reclassified as Selected Exempt Service by Chapter 2001-43, Laws of Florida.

In reaching this conclusion, we note that the Legislature originally "grandfathered-in" employees who were employed prior to July 1, 1989[1] (the effective date of the new law under Chapter 89-380, Laws of Florida) and then, as the statute was amended to bring in additional categories of employees and officials, chose to "grandfather" those persons on the effective date of the law that made the two-year prohibition applicable to them.[2]  Rather than encouraging the mass exodus of affected employees on or before an effective date, we believe that the Legislature opted to exempt some of those persons by enacting the language found in Subsection 112.313(9)(a)6. Such an approach, we opined in CEO 94-20, was fair because the affected employees would not have been on notice when they first accepted their positions that they would face post-employment restrictions.

Our reasoning in CEO 94-20 was based in part on the Florida Supreme Court's decision in Myers v. Hawkins, 362 So.2d 926 (Fla. 1978), which held that Article II, Section 8(e), Florida Constitution, which bars State legislators from practicing law before State agencies other than judicial tribunals, was inapplicable to persons who held office on the effective date of the amendment.  Emphasizing that there was "absolutely no employment limitation when the term of office was sought" and that the "new and onerous" constitutional requirements substantially abrogated Senator Myers' status as a legislator and a member of The Florida Bar, the court refused to apply those provisions to incumbent legislators.  The Court wrote:

 

To apply newly‑created professional limitations on a part‑time Florida legislator in the midst of his term of office obviously defeats expectations honestly arrived at when the office was initially sought.  The office itself is not abrogated or its duties altered, of course, but the privileges of officeholding are no less impaired by curtailing non‑legislative employment opportunities than they would be if the office was made full‑time and outside employment prohibited altogether.  The abridgement in either case is tantamount to changing the qualifications of office.  There was absolutely no employment limitation when the term of office was sought. [Footnotes omitted.] Id. at 935.

 

In reaching this conclusion the Court relied on State ex rel. Reynolds v. Roan, 213 So.2d 425 (Fla.1968) and Holley v. Adams, 238 So.2d 401 (Fla.1970).  In Reynolds, the Court rejected an attempt by a school board to oust its appointed superintendent based on a constitutional amendment requiring school board superintendents to serve at the pleasure of their appointing boards.  Superintendent Reynolds had received a pre‑amendment board appointment for a fixed term which extended beyond the amendment's effective date.  The Court's decision was based on the absence of express language in the constitutional amendment requiring it to be applied to incumbent officeholders.  The Court wrote:

 

[A]n intention to apply the shortened term of an office, or the changed qualifications thereof, to an incumbent, resulting in his ouster from the office before the end of his term, must be clearly expressed in the statute or constitutional amendment making the change before it will be given that effect.

 

However, in Holley v. Adams, the Court applied a newly‑enacted "resign-to-run" statute to incumbent officeholders, thereby forcing a curtailment of their terms of office.  By concluding that the statute did not affect the qualifications of office or, by its operation, shorten  the terms of office, any possible reasons that the statute should not have been applied to incumbents were eliminated by the Court.  The need for the Court to consider an expression of intent in the statute therefore became unnecessary, since the impermissible feature of statutory or constitutional change resulting in an effective "ouster" was not present.

In Myers, the Court found that whether it approached the applicability of Article II, Section 8(e), Florida Constitution, from the perspective of either Reynolds[3] or Holley[4], the conclusion was the same --that Article II, Section 8(e), Florida Constitution, should not be considered applicable to persons in office on its effective date, because neither Section 8(e) by itself nor in conjunction with other provisions of the Sunshine Amendment expressed a clear and unequivocal intention that its "strictures" should be applied to existing officeholders.  Similarly here, no language exists in Section 112.313(9), Florida Statutes, which directly evidences the Legislature's consideration of the impact of the two year prohibition on those State employees who were moved into the newly established Selected Exempt Service positions.  The statute provides no indication of whether they were meant to be included in or exempted from the defined class of employees to whom Section 112.313(9) applies.  Although it is clear that by enacting Chapter 2001-43, the Legislature meant to "modernize" the State's personnel system by, among other things, moving approximately 16,000 Career Service supervisors, managers, directors, administrators, and confidential employees to Selected Exempt Service positions, eliminating some of the rights previously attendant to Career Services System positions, imposing or providing more benefits and choices for State employees, and requiring greater accountability of all State workers, it is not clear that the Legislature meant to impose the two year prohibition on those former Career Service System employees who were moved into Selected Exempt Service positions.

In Department of Corrections v. Florida Nurses Association, 508 So. 2d 317 (Fla. 1987), the Supreme Court considered whether a law creating the Selected Professional Service class of employees could constitutionally be applied to exempt from the Career Service System those physicians and attorneys  who already had permanent status in the Career Service System as of the effective date of the statute.  In other words, the Court was asked to decide whether the "en masse reclassification" of physicians from Career Service to Selected Professional Services was an unconstitutional violation of substantive due process and equal protection guarantees.

Reclassification of physicians and attorneys into a Selected Professional Service reflected a policy decision of the Legislature, the Court concluded.  Furthermore, the Court found nothing to suggest that the statutory reclassification of physicians and attorneys was a "bad faith subterfuge to discharge or deny rights to an employee or group of employees in violation of civil service rules."  Therefore, the Court opined that the statutory reclassification, which bore a "rational and reasonable relationship to a legitimate state objective" and was not arbitrary or capriciously imposed, was constitutional.  The Court wrote:

 

The reclassification of professionals into a Selected Professional Service reflects a policy decision of the legislature.  There is no suggestion, nor given its scope is it likely, that this is a bad faith subterfuge to discharge or deny rights to an employee or group of employees in violation of civil service rules.  .  .  .  A tenured employee's right to continued employment during good behavior is contingent upon the continued existence of the employment.  Any expectation that Career Service, or any particular position therein, will exist for infinity, is at most a mere hope.  Implicit in the employment arrangement is the possibility that one day the legislature may consider such employment no longer consistent with the public welfare.  "The inhibitions of the Constitutions of the United States upon the deprivation of property without due process, or the equal protection of the law by the states, are not violated by the legitimate exercise of legislative power in securing the health, safety, morals and general welfare."

 

Thus, while the Court recognized that "tenured" employees acquire a property right in their employment,[5] it also reiterated that they have no "vested or contractual rights in the continuation of legislatively created employment once that employment is legislatively abolished." Department of Corrections v. Florida Nurses Association, at 320.[6]  Similarly, here, we do not conclude that the Legislature could not apply the two-year prohibition to you and the other new members of the Selected Exempt System.

We believe that the lack of a "clear and unequivocally expressed intention" by the Legislature that its en masse transfer of Career Service System employees to the Selected Exempt Services would subject them to the two year prohibition of Section 112.313(9)(a)4, Florida Statutes, coupled with the impairment of job expectations arrived at prior to the Legislature's enactment of the Governor's Service First Initiative,  requires us to apply the Myers court rationale here and find that the two year prohibition does not apply under these circumstances.  Nevertheless, we urge the Legislature to revisit its transfer of Career Service System employees to the Selected Exempt Services and expressly determine whether it meant for the two year prohibition of Section 112.313(9)(a)4 to apply to those employees.

Accordingly, under the circumstances presented, we find that Section 112.313(9)(a)4, Florida Statutes, does not apply to prohibit you from personally representing another person or entity before District Four of DOT for two (2) years from the date that you vacate your position with DOT.

 

SECTION 112.3185, FLORIDA STATUTES

 

You advise that your only involvement in procuring services for DOT in recent years has been in selecting engineering consultants for construction, engineering, and inspection services through shortlisting firms based on letters of interest, attending technical committees, and acting as a voting member of a panel for final selection.  You question whether you may work for a firm on a contract for which you were not involved in the procurement or selection, but for which you reviewed plans during design phases and prior to construction.  Section 112.3185, Florida Statutes, provides in pertinent part:

 

CONTRACTUAL SERVICES.--

(1) For the purposes of this section:

(a) 'Contractual services' shall be defined as set forth in chapter 287.

(b) 'Agency' means any state officer, department, board, commission, or council of the executive or judicial branch of state government and includes the Public Service Commission.

.   .   .   .   .

(3)  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.

(4)  No agency employee shall, within 2 years of retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his or her responsibility while an employee.

(5)  The sum of money paid to a former agency employee during the first year after the cessation of his or her responsibilities, by the agency with whom he or she was employed, for contractual services provided to the agency, shall not exceed the annual salary received on the date of cessation of his or her responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state.

 

For purposes of Section 112.3185(4), "contractual services" is defined as set forth in Section 287.012(7), Florida Statutes, to mean

 

the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports of findings of consultants engaged thereunder; and professional, technical, and social services.  'Contractual service' does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder.

 

Section 112.3185(3) restricts the employment that you may seek after leaving employment with DOT by prohibiting you from becoming employed by a business entity in connection with a contract in which you participated "personally and substantially" through decision, approval, disapproval, recommendation, rendering of advice, or investigation. See CEO 83-8, in which we limited our interpretation of this list of activities to the procurement process.  Section 112.3185(4) prohibits you from becoming employed in a non-agency capacity in connection with any contract for contractual services which was within your responsibility as a DOT employee during the two-year period following your vacating your position.  Also, during your first year after you terminate your employment with DOT, Section 112.3185(5) prohibits you from being paid for services provided to DOT more than the annual salary that you received prior to your termination of your employment, which prohibition may be waived by the DOT Secretary if he determines that such waiver will result in significant time or cost savings to the State.

We are unable to advise you regarding the application of these provisions to your situation without having specific information regarding the circumstances surrounding the procurement and administration of any contracts that your potential employer may have with DOT.  Although in some instances one's participation in the subject matter of a contract, even though not directly with its award, may be "personal" and "substantial," in other situations it may not.  See CEO 00-6 and the opinions cited therein.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 24, 2002 and RENDERED this 29th day of January, 2002.

 

 

__________________________

Ronald S. Spencer, Jr.

Chair

 


[1]In CEO 94-20, we concluded that an employee of the Legislature, who was employed with the Legislature and then a State department in a Selected Exempt Service position prior to July 1, 1989 and who was an employee of the Legislature on July 1, 1989 but who subsequently left that employment, would be prohibited from representing clients before the Legislature for two years if she were to take a covered position with the Legislature and then to leave that employment.

[2]The effective date of Ch. 94-277, Laws of Florida, which brought SUS and PSC employees, as well as appointed state officers, under the two-year ban was January 1, 1995.

[3]Assuming an ouster by the Constitutional amendment and focusing on whether the amendment expresses an intention that it be applied to incumbent officeholders.

[4]Whether the constitutional change has abolished the office, changed the qualifications of office, or imposed new and onerous requirements on some or all of the incumbents who desire to continue in office.

[5]Citing Headley v. Baron, 228 So. 2d 281 (Fla. 1969).

[6]Citing State ex rel. McIver v. Swank, 152 Fla. 565, 12 So. 2d 605 (1943).