POSTEMPLOYMENT RESTRICTIONS

FORMER EXECUTIVE DIRECTOR OF COMMISSION FOR THE
TRANSPORTATION DISADVANTAGED EMPLOYED WITH CONTRACTOR
OF THE COMMISSION

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

SUMMARY:

A former Executive Director of the Florida Commission for the Transportation Disadvantaged is not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing her employer in a competitive process to become a Community Transportation Coordinator; from representing her employer before other community transportation coordinators; and from participating in the employer's business activities so long as she does not personally communicate with the Commission.

QUESTION:

Are you, the former Executive Director of the Florida Commission for the Transportation Disadvantaged, prohibited from representing your employer in a competitive process to become a Community Transportation Coordinator or before other Community Transportation Coordinators, and from participating in the employer's business activities, so long as you do not personally communicate with the Commission?

Your question is answered in the negative, under the circumstances presented.

In your request for an opinion and subsequent email communications with staff, you ask us to discuss the applicability of the post-employment restrictions of the Code of Ethics for Public Officers and Employees [Part III, Chapter 112, Florida Statutes] on your involvement in various competitive processes concerning your new private sector employer. You advise that you are the former Executive Director for the Florida Commission for the Transportation Disadvantaged ("Commission"), having resigned from the Commission on October 13, 2008. You were hired by TMS Management Group, Inc. ("TMS") on December 1, 2008 to serve as their Director of Business Development. You state that TMS currently contracts to deliver Medicaid non-emergency transportation services to eligible Medicaid recipients in Brevard, Broward, Manatee, and Sarasota Counties.

The Florida Commission for the Transportation Disadvantaged, though housed within the Florida Department of Transportation for administrative and fiscal accountability purposes, functions independently of the control, supervision, and direction of the Department of Transportation.¹ The Commission contracts with the Agency for Health Care Administration ("AHCA") to manage the Medicaid Non-Emergency Transportation program, which provides transportation services to Medicaid recipients in each county.

These services are provided with the assistance of local government entities throughout the State. The highest level local entity is the Official Planning Agency, which is either a Metropolitan Planning Organization or some other designated planning agency. (The Commission designates the Official Planning Agency if that area is outside of the purview of a Metropolitan Planning Organization.²) Below the Official Planning Agency is the Local Coordinating Board, which is appointed by the Official Planning Agency and helps coordinate services to the transportation disadvantaged.³ The Official Planning Agency is also responsible for recommending a single Community Transportation Coordinator for each county to the Commission.⁴ The Commission is responsible for approving all Community Transportation Coordinators,⁵ which either provide the transportation services or contract with providers (like TMS) for transportation services, and which are monitored by the Local Coordinating Boards.⁶ There are also Purchasing Agencies, State agencies who also need transportation services for their clients and whose duties and responsibilities are provided for in Section 427.0135, Florida Statutes.⁷

In light of the foregoing, you inquire whether Section 112.313(9)(a)4, Florida Statutes, would prohibit your being involved in a competitive process wherein your employer seeks to contract with the Local Planning Agency to be a Community Transportation Coordinator. Section 112.313(9)(a)4 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 Section 112.313(9)(a)4, the term “agency” means:

any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes.]

Section 112.313(9)(a)4 prohibits an Executive Director from personally representing another person or entity for compensation before the agency with which she was employed for a period of two years following vacation of her position.⁸ We have not, until this occasion, had the opportunity to address the extent of one's agency in a structure where, as here, the Legislature delegated functions to hierarchically subordinate units that are either separate, independent agencies or private companies.

In CEO 00-11, we opined that even though the former general counsel of DEP served as staff to the Board of Trustees of the Internal Improvement Trust Fund, on which the Governor and cabinet members sat, he was not prohibited from representation before the Governor or any other Cabinet Officer in their capacity as a member of the Board of Trustees of the Internal Improvement Trust Fund. The rationale of the opinion was that "the language in the statute seems clear that a former employee is restricted from representing clients 'before the agency with which he or she was employed.'" The lynchpin of this rationale was the fact that the attorney was an employee of the Department of Environmental Protection, not the Board. That rationale was followed in CEO 02-12, where we stated that a former attorney for AHCA was not prohibited from representing clients before the DOH or various boards under the DOH.

Turning now to your first question, you advise that TMS would like you to be involved in its bid submitted to the Central Florida Regional Planning Council ("Council") to serve that jurisdiction as a Community Transportation Coordinator. The Council is a Regional Planning Council created pursuant to Section 186.501, et. seq. Most of the Council's powers and responsibilities are contained in Chapter 186, Florida Statutes. It is subject to the Sunshine Laws and Public Records laws. Pursuant to Chapter 186, the Council has the authority to maintain an office, enter into contracts, sue and be sued in its own name, and hire staff among numerous other things.

The Council was appointed by the Commission as the local planning agency for Hardee, Highlands, and Okeechobee Counties. Because of this appointment, the Council also has the functions delegated to it pursuant to Section 427.015, Florida Statutes, and applicable provisions of the Florida Administrative Code. However, there is no indication in either Chapter 186 or Chapter 427 that the Legislature meant to make the Council a part of the Commission. Absent a clear indication from the Legislature that it intended to include within the Commission previously existing agencies, with their own independent statutory basis and responsibilities, we cannot say that the Council would be a lower organizational unit of the Commission.

In light of the foregoing, we cannot find that the agency with which you were employed includes the Council. Therefore, you would not be prohibited from representing TMS in its pursuit of the Council's bid.

You also inquire whether you would be prohibited from representing TMS in its efforts to contract as an operator with a Community Transportation Coordinator. All of the Community Transportation Coordinators are either a local governmental entity, each with its own constitutional or statutory basis, or are a private company.⁹ Under the same rationale as applied in answering your first question, it is clear that none of the Community Transportation Coordinators would be considered to be a part of the Commission. Therefore, Section 112.313(9)(a)4, Florida Statutes, does not prohibit your participation in the competitive process to become an operator for a Community Transportation Coordinator.

Your third inquiry concerns whether you can be listed in bid response documents before the Commission as the Director of Business Development and assist with transition and start-up activities at the local level (should TMS be chosen as the contractor). You advise that you will not personally appear before the Commission nor discuss with any Commissioner business opportunities on behalf of TMS for a period of two years.

As previously mentioned, Section 112.313(9)(a)4 prohibits you from personally representing any person or entity for compensation before the Commission for a period of two years. Key to the analysis of this question is the definition of represent. "Represent" is defined in Section 112.312(22), Florida Statutes as:

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.

Under the plain language of the statute, it appears that the Legislature intended to prohibit former employees from personally attending an agency proceeding, from personally writing letters or filing documents on behalf of a client, and from personally communicating with the officers or employees of his or her former agency on behalf of a client. See CEO 00-20, CEO 00-11, and CEO 02-12.

We answer this inquiry in the negative. Were someone to write a letter mentioning your status, file documents referencing your employment, or contact the Commission or its staff and reference you, we do not believe that this would constitute your personal representation before your former agency. Section 112.313(9)(a)4 prohibits your personal involvement.

In the same vein, you inquire whether you can communicate with Commission staff members as it pertains to information needed for TMS to operate. You cite the example of a request for public information or documentation that is required to be completed by another state agency or organization in their out of state bid process to which TMS is responding. In a line of opinions, we have consistently held that actions necessary to carry out, as opposed to actions to obtain, a contract with one's former agency do not constitute "representation" within the meaning of the prohibition. See, for example, CEO 00-6. Consistent with this rationale, we believe that requesting public records and information that TMS needs regarding contracts which are currently in existence, and which you did not participate personally or substantially in the determination and/or procurement of, would also not constitute "representation." However, without knowing more about the nature and context of your proposed contacts with Commission staff, we are unable to provide more definite advice.

Accordingly, we find that you are not prohibited from participating in TMS' efforts to become a Community Transportation Coordinator for the Central Florida Regional Planning Council. Additionally, we find that you are not prohibited from participating in TMS' efforts to contract as an operator with Community Transportation Coordinators. We also find that others are not prohibited from mentioning you in communications with the Commission. Finally, we find that you are not prohibited from contacting Commission staff members in order to accomplish contracts your employer may have with the Commission or with local transportation agencies.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 6, 2009 and RENDERED this 11th day of March, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1]Section 427.012(9), Florida Statutes.