POSTEMPLOYMENT RESTRICTIONS

FDOT FORMER SES EMPLOYEE ENGAGING IN REPRESENTATION BEFORE FDOT WITHIN TWO YEARS OF LEAVING FDOT

To: Name withheld at person's request

SUMMARY:

A Selected Exempt Service attorney employed by the Florida Department of Transportation would be prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally representing another person or entity for compensation against the Department in eminent domain proceedings, presuit negotiations for same, or in an inverse condemnation lawsuit or negotiations prior to such a lawsuit against the Department for two years following vacation of his position.

QUESTION 1:

Would you, a Selected Exempt Service (SES) attorney employed by the Florida Department of Transportation (FDOT), be prohibited by Section 112.313(9)(a)4, Florida Statutes, for two years after leaving your employment from personally engaging in compensated representation against FDOT in eminent domain proceedings in which the Department is the condemning authority?

Your question is answered in the affirmative.

In your letter of inquiry and in a telephone conversation with our staff, you advise that until recently you were employed as a Senior Attorney--Eminent Domain with the Florida Department of Transportation, in a Selected Exempt Service (SES) position in District 7.¹ You are now a sole practitioner in private practice, and you ask whether you are prohibited for two years after leaving employment from representing another person or entity for compensation in an eminent domain proceeding (as the term is used in Section 73.015)² in which the FDOT is the condemning authority. If permissible under the Code of Ethics, you contemplate representing clients in District 7.

Section 112.313(9)(a), Florida Statutes, provides in relevant part:

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.

c. "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control.

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.

Section 112.313(9)(a)4, Florida Statutes, prohibits a former agency "employee" as that term is defined at Section 112.313(9)(a)2.a., Florida Statutes, 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. As the term "employee" is defined as including a member of the SES, you are an "employee" for purposes of this section.

We must next consider whether the activity in which you propose to engage constitutes "representation" and whether the representation is "before the agency with which [you] were employed" that is, the FDOT.

The term "representation" is defined at 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." You state that the practice you are contemplating would, in the course of litigation, involve communications with opposing counsel employed by FDOT, including discovery, filing documents, and personal communications with FDOT attorneys and staff. Indeed, Section 73.015(1), Florida Statutes, requires that, "before an eminent domain proceeding is brought . . . a condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired . . . and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel." Accordingly, when FDOT is the condemning authority, personal communications with the Department's attorneys would be required before the suit could be brought.

Certain of our prior opinions have indicated that when an entity other than the former employee's agency (such as a court, another agency, or the Division of Administrative Hearings) has authority to make the final decision in the matter, the matter would not be considered to be "before" the former employee's agency for purposes of Section 112.313(9). See, CEO 93-14, Questions 1 B, 3 A, B, and C, B, C, and D. We have also indicated that the individual's "agency" for purposes of this statute was the lowest departmental unit within which the employee's influence might be considered to extend. CEO 96-18.

However, in CEO 02-12, we again considered the scope of the post-employment restriction with respect to a former agency attorney. The attorney in question was formerly employed in the Practitioner Regulation Section of the General Counsel's Office in the AHCA. In that capacity, she handled cases before the Boards of Medicine, Osteopathic Medicine, Respiratory Care, and Occupational Therapy, all of which were established within the Department of Health (DOH). We advised that the attorney could appear before those same boards or any other board established within the DOH within two years following vacation of her position, because "these Boards were not part of the agency with which you were employed for purposes of the application of Section 112.313(9)(a)4. The 'agency with which [you were] employed' was the AHCA, not DOH or the various health professional boards under DOH."³ But we also found that written and/or oral communication with AHCA employees in the Medical Section of the Practitioner Regulation Section of the AHCA's General Counsel's Office (such as discovery requests, examination of witnesses, filing documents, and personal communications related to a proceeding) in furtherance of her efforts on behalf of a client before one of these Boards would constitute "representation" before the agency with which she had been employed and would violate the prohibition.⁴ We advised the attorney that because "the agency with which you were employed is the AHCA," she would be prohibited from appearing before any AHCA divisions on behalf of clients for compensation within two years of leaving her agency employment.⁵

Most recently, in CEO 04-16, we addressed a post-employment question presented by an engineer who was formerly an SES employee of the FDOT. The engineer was assigned to District 1 but also had certain responsibilities in District 7. We advised in that opinion that the engineer's "agency" was the whole of FDOT.

Applying these precedents, it is clear that your "agency" for purposes of the post-employment restriction of Section 112.313(9)(a)4 is the entire Department. Further, as it is evident from CEO 02-12 that the locus of the authority to take final action does not determine whether a matter is "before" one's former agency for purposes of Section 112.313(9)(a)4, there is no basis for excluding communications with personnel of your former agency from the ambit of the prohibition once the case is in circuit court.

Accordingly, we find that you would be prohibited by Section 112.313(9)(a)4, Florida Statutes, for two years after leaving your FDOT employment from personally engaging in compensated representation against FDOT in eminent domain proceedings in which the Department is the condemning authority.

QUESTION 2:

Would you be prohibited by Section 112.313(9)(a)4, Florida Statutes, during the two-year period from personally engaging in compensated representation in presuit negotiations against FDOT?

Your question is answered in the affirmative.

As previously stated, Section 73.015, Florida Statutes, requires that "before an eminent domain proceeding is brought . . . a condemning authority must attempt to negotiate in good faith with the fee owner of the parcel to be acquired . . . and must attempt to reach an agreement regarding the amount of compensation to be paid for the parcel." Of necessity, such negotiations would require written and oral communication with attorneys and staff of the Department, and thus would constitute "representation" before your former agency. Accordingly, it is our opinion that Section 112.313(9)(a)4, Florida Statutes, would prohibit you from personally engaging in compensated representation in presuit negotiations with the FDOT.

QUESTION 3:

Would you be prohibited by Section 112.313(9)(a)4, Florida Statutes, during the two-year period from personally engaging in compensated representation in a lawsuit against the Department seeking compensation for inverse condemnation?

Our response to this question is the same as that provided in response to Questions 1 and 2 herein.

QUESTION 4:

Would you be prohibited by Section 112.313(9)(a)4, Florida Statutes, during the two-year period from personally engaging in compensated representation in presuit negotiations against FDOT on behalf of a client seeking compensation for alleged inverse condemnation?

Our response to this question is the same as that provided in response to the preceding questions. We note that unlike the situation in Question 2, presuit negotiations are not statutorily required in inverse condemnation proceedings. This distinction does not alter our conclusion that such negotiations would be "representation" before the FDOT. Accordingly, your question is answered in the affirmative.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 3, 2006 and RENDERED this 8th day of March, 2006.



______________________________
Thomas P. Scarritt, Jr., Chairman