CEO 00-15 -- August 29, 2000

 

POST-EMPLOYMENT RESTRICTIONS

 

GOVERNOR'S FORMER DEPUTY CHIEF OF STAFF LOBBYING FLORIDA YEAR 2000 TASK FORCE WITHIN TWO YEARS OF VACATING EMPLOYMENT WITH THE GOVERNOR'S OFFICE

 

To:       Mark Herron,  Attorney (Tallahassee)

 

SUMMARY:

 

The Florida Y2K (Year 2000) Task Force is a "state agency," as that term is defined at Section 112.313(9)(a)2.c, Florida Statutes, since it initially was created as an independent "entity" with staff support being provided by the Governor's Office of Planning and Budgeting; it was responsible for making funding recommendations to the Executive Office of the Governor; and plenary budgetary control over the Task Force was exercised by the Legislature through provisos in the general appropriation acts.  It also appears to have functioned most like an entity of the executive branch of State government as evidenced by its initial staff support being provided by the Governor's office, its funding recommendations being made to the Governor's office, and its joining together with Team Florida under the supervision and coordination of the Secretary of the Department of Management Services at the request of the Governor.

 

From March 1999, when coordination efforts with respect to the Task Force were taken over by the Department of Management Services,  until the Governor's former Deputy Chief of Staff's departure from the Governor's Office in November 1999, the Task Force clearly was not part of the "agency with which he was employed."  Similarly, from January 1999 until March 1999, while the Year 2000 Project Office, which  initially provided staff support to the Task Force and coordinated the Y2K readiness activities of the executive and judicial branches of State government and later received Y2K Administered Funds for transfer to various State agencies upon the recommendation of the Task Force through the budget amendment process, was part of the Governor's Office of Planning and Budgeting, the Task Force was not.  Consequently, because the Florida Year 2000 Task Force was not the agency with which the Governor's former Deputy Chief of Staff was employed, he was not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing a private company before the Task Force for a period of two years of his vacating his position with the Governor's office.

 

QUESTION:

 

Did the Governor's former Deputy Chief of Staff's lobbying of the State of Florida Y2K (Year 2000) Task Force within two years of his vacating his position with the Governor's office violate Section 112.313(9)(a), Florida Statutes?

 

Your question is answered in the negative.

 

We are advised that that Mr. David Rancourt formerly was employed in the Executive Office of the Governor as Deputy Chief of Staff, a Senior Management Services position, from January 1999 until November 1999.  In that position, we are advised, he did not supervise the Governor's Office of Planning and Budgeting ("OPB").  After leaving his State government employment, we understand, Mr. Rancourt was retained by a private company to address an issue pending before the Y2K (Year 2000) Task Force.  Mr. Rancourt advises that his representation of the company occurred within two years of his leaving his employment with the Executive Office of the Governor.  However, he states that he avoided lobbying those members of the Task Force who were employees of the OPB.

Both you and Mr. Rancourt contend that he did not violate Section 112.313(9)(a), Florida Statutes, which prohibits him, as a defined "employee," from representing another person or entity for compensation before the agency with which he was employed for a period of two years following vacation of his position. Your conclusion is based on Mr. Rancourt's assertion that he avoided lobbying any members of the Task Force who were employees of the Executive Office of the Governor and on his and your contention that the Task Force was not a component of the Executive Office of the Governor, his agency, as evidenced by: (1) its being composed primarily of employees and State officials who did not work for the Executive Office of the Governor; (2) its budgetary decisions being approved by State employees who did not work for the Executive Office of the Governor; (3) some of the appointments of its members being made by someone other than the Governor; and (4) plenary authority over the Task Force not being under the Governor.  The Task Force,[1] as described in the Florida Year 2000 Project Office's "Notice" of closure of its operations, is described as being chaired by the Governor's Office of Planning and Budgeting and as being composed of representatives of the Department of Banking and Finance, the Department of Law Enforcement, and the Department of Management Services, as well as ex officio members/representatives from the Florida Senate and House of Representatives.

The "Year 2000 Task Force Final Report" and the Florida House Committee on Governmental Operations' Bill Research & Economic Impact Statement ("Committee Statement") on HB 3619 indicate that the Task Force was the outgrowth of activities undertaken with varying degrees of effectiveness in Florida in the early 1990's to address the anticipated Y2K problems.  The Final Report explains that one of the recommendations of the resultant December 1996 report from the Joint Legislative Auditing Committee's directing the Auditor General to assess the potential impact of the Year 2000 on state government information technology was the establishment of a Year 2000 Oversight Task Force to monitor the resolution of the Year 2000 problem.  The report reportedly recommended that the Task Force include representation from both the Legislature and the Office of the Governor.

As a consequence, the Legislature, through a proviso in the FY 1997-98 General Appropriations Act (Item 1495, Chapter 97-152, Laws of Florida), authorized funds for use by agencies in their remediation activities relating to their Y2K computer problems and for the creation of a Year 2000 Project Office within the Governor's Office of Planning and Budgeting to provide staff support to the Year 2000 Task Force, and to coordinate the Y2K readiness activities of the executive and judicial branches of state government. A portion of these funds also were to be used to hire a consultant to aid the State and the Project Office in identifying those agencies and those computer systems that represented the greatest risk to the State if they were not prepared to properly handle date-sensitive functions.

The use of remediation funds, the initial creation of the Year 2000 Project Office, and the allocation of funds to specific agencies for remediation reportedly took place under the auspices of the Year 2000 Task Force, which was created in the Spring of 1997.  Initially, the Task Force consisted of three state agency managers and three members of the Legislature. The Legislative Information Technology Resource Committee provided the initial staffing and support until staff was hired in October 1997.  Throughout the 33 months of its existence, the Final Report states, the Task Force established a master plan for the remediation project, adopted a scheme for prioritizing "the agency application systems," reviewed and made comments on agency progress or lack thereof, set policies on various issues dealing with the Year 2000, and recommended the allocation of almost $40 million in Administered Funds to agencies.[2]

During the budget estimate hearings with State agencies, the Final Report states, the Task Force's legislative members determined that allocating Y2K funds to agencies from a central source, such as the Task Force and Project Office,[3] would be more efficient than appropriating funds to each individual agency based upon each agency's budget issues for the Y2K remediation cost. It was presumed that appropriating Y2K remediation funds through a centralized office would provide greater oversight of how the funds were used, and thus would create a clearer audit trail.  In addition, appropriating the Y2K Administered Funds to a program within OPB was thought to facilitate the statutory budget amendment process used to transfer funds from the Y2K Project Office into agency accounts, since all budget amendments had to be approved by OPB before being forwarded to the legislative budget committees.[4]

In March 1999, shortly after Governor Jeb Bush took office, and within three months of  Mr. Rancourt's employment as Deputy Chief of Staff, Governor Bush reportedly broadened the scope of the State's Y2K activities to include local government entities and elements of Florida's "critical infrastructure" and to provide "citizen awareness information."  In order to accomplish this broader mission, the Final Report states, Governor Bush created a second group, Team Florida 2000, to address the Y2K readiness of such local entities as cities, counties, the offices of locally-elected constitutional officers, county 911 systems, law enforcement agencies, and health care providers, among others.  In order to ensure a well-coordinated approach, the Final Report states, Governor Bush asked DMS Secretary Tom McGurk to oversee and manage the entire Y2K effort. Thus, according to the Final Report, Team Florida 2000 and the Year 2000 Task Force joined forces under the DMS Secretary to "properly prepare all Florida government and critical infrastructure for entry into the 21st century."  The individual who was employed as the State's Y2K coordinator and Executive Director of Team Florida 2000 was a DMS employee.

Relevant to your inquiry is the following provision of the Code of Ethics for Public Officers and Employees, which provide 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.

                                                                      .   .   .   .   .

(VI)  Any person having the power normally conferred upon the positions referenced in this sub‑subparagraph.

                                                                      .   .   .   .   .

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.

5.   Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct.

 

This provision prohibits agency "employees," as that term is defined at Section 112.313(9)(a)2, Florida Statutes, from representing another person or entity for compensation before the agency with which they were employed for a period of two years following vacation of their positions, unless their employment falls within the terms of an exemption contained in Section 112.313(9)(a)6, Florida Statutes.[5]

As you have recognized, the position of Deputy Chief of Staff in the Governor's office is exempt from the Career Service System, under Section 110.205(2)(i), Florida Statutes, and is included in the Senior Management System by Section 110.402(2), Florida Statutes.  Therefore, we find that Mr. Rancourt clearly meets the definition of "employee" as set forth at Section 112.313(9)(a)2.a.(1), Florida Statutes, for purposes of the application of the two-year prohibition of Section 112.313(9)(a)4 to him.

Although not statutorily created, we also find that the Task Force constitutes a "state agency," as that term is defined at Section 112.313(9)(a)2.c, Florida Statutes,[6] since it initially was created as an independent "entity" with staff support provided by the Governor's OPB.  Moreover, the Task Force was responsible for making funding recommendations to the Executive Office of the Governor, and plenary budgetary control over the Task Force was exercised by the Legislature through its provisos in the general appropriation acts.  The Task Force also appears to have functioned most like an entity of the executive branch of State government as evidenced by its initial staff support provided by the Governor's office, its funding recommendations made to the Governor's office, and its joining together with Team Florida under the supervision and coordination of the DMS Secretary at the request of the Governor. 

By March 1999, within three months of his beginning his employment with the Executive Office of the Governor, coordination efforts with respect to the Task Force were taken over by DMS.  Thus, from March 1999 until Mr. Rancourt's departure from the Governor's Office in November 1999, we find that the Task Force clearly was not part of the "agency with which he was employed."  Similarly, it is clear to us that from January 1999 until March 1999, while the Year 2000 Project Office, which  initially provided staff support to the Task Force and coordinated the Y2K readiness activities of the executive and judicial branches of State government and later received Y2K Administered Funds for transfer to various State agencies upon the recommendation of the Task Force through the budget amendment process, was part of the Governor's OPB, the Task Force was not.  Thus, we find, as we did with respect to a different set of circumstances in CEO 00-6, that the intent of the Legislature in enacting Section 112.313(9)(a)4 to prevent the appearance of impropriety by prohibiting public officers and employees from exploiting the special knowledge or influence gained from their public positions for private gain after leaving their public positions, and restricting interactions between the former public officers and employees and their former colleagues, would not be served by prohibiting Mr. Rancourt from lobbying the Task Force for a period of two years from the time that he vacated his position with the Governor's Office, since the Task Force was an entity separate and independent of the Governor's office and since Mr. Rancourt, who did not supervise the Governor's OPB, apparently also did not deal directly with the Task Force during his employment with the Governor's office.

Accordingly, we find that, because the Task Force was not the agency with which Mr. Rancourt was employed, he was not prohibited from representing the company before the Task Force for a period of two years from the time that he vacated his position with the Governor's office.

 

ORDERED by the State of Florida Commission on Ethics meeting in public session on August 24, 2000 and RENDERED this 29th day of August.

 

 

___________________________________

Howard Marks, Chair


[1]Much of the information about the Task Force was obtained from the Year 2000 Task Force Final Report which is found at www.state.fl.us/y2ksite/ytk_main.html and from the Florida House Committee on Governmental Operations' March 18, 1998 Bill Research and Economic Impact Statement regarding HB 3619.

[2]Similar language to the proviso in Chapter 97-152, Laws of Florida, was included in the 1998-1999 and the 1999-2000 general appropriations acts.  The provisos in each of these acts carried forward the role of the Y2K Task Force.

[3]In meetings of the Y2K Task Force during the 1997 legislative session, the Final Report states, OPB and the Legislature agreed that there was a need to create a small Year 2000 Project Office within state government to provide a "centralized coordinated approach" to ensure that all agencies were adequately prepared for the Year 2000.

[4]All three provisos made release of allocated funds, which were recommended by the Y2K Task Force and approved by the Executive Office of the Governor, subject to the budget amendment process set forth in Chapter 216, Florida Statutes.  Section 216.181(4), Florida Statutes, requires budget amendments exceeding $500,000 for executive branch agencies to be approved by the Governor and the Administration Commission.

 

[5]Under the circumstances presented here, the exemption is not applicable.

[6]"State agency" is defined to mean

any entity of the legislative, executive, or judicial branch of state government over which the legislature exercises plenary budgetary and statutory control.