POSTEMPLOYMENT RESTRICTIONS
FDOT FORMER INTELLIGENT TRANSPORTATION SYSTEM
PROJECT MANAGER WORKING IN CONNECTION WITH
FDOT CONTRACT REGARDING WHICH HE
PARTICIPATED WHILE EMPLOYED AT FDOT
To: Vaughn Cooper (Tampa)
SUMMARY:
A former FDOT employee is not prohibited by Section 112.3185(3), Florida Statutes, from holding employment or a contractual relationship with a business entity in connection with a FDOT contract. Under the very specific circumstances presented in this inquiry, the employee's FDOT capacity participation regarding the contract was not substantial.
QUESTION:
Are you, a licensed engineer formerly employed by the Florida Department of Transportation as an Intelligent Transportation System Project Manager, prohibited by Section 112.3185(3), Florida Statutes, from holding employment or a contractual relationship in connection with a FDOT contract which you participated in developing while employed by FDOT?
Under the circumstances presented, your question is answered in the negative.
By your written inquiry and additional information provided by you in response to contact from our staff, we are advised that you were employed until August 2011, by the Florida Department of Transportation (FDOT), always in a Career Service System position,1 serving most recently as Intelligent Transportation System (ITS) Project Manager for FDOT's District Seven. In this position, you advise, you assisted the District's Consultant Project Manager, who was responsible for an upcoming I-275 design build project in Tampa,2 in developing the language in the request for proposals (RFP) for the ITS elements of the project. Further, you advise that your FDOT role included laying out the proposed locations for ITS devices, making suggestions as to the types of devices to be installed, and making suggestions for the method of communications with the devices. You state that the location of and method of communication with ITS devices are not unique or proprietary but, rather, are based on convention and norms for works of such a nature. Also, you advise that others, too, were involved in developing the language in the RFP for the ITS elements, including the District's ITS Program Manager and the District's Traffic Design Engineer. You advise that the ITS Program Manager was involved in suggesting some system location and some device location, and approved any suggestions that were made. The Traffic Design Engineer, you advise, was responsible for all of the traffic systems on the project, including the ITS devices, and so reviewed the proposed layout and provided suggestions to improve it. Further, you advise that the ITS Program Manager was your supervisor at FDOT, that the ITS Program Manager was and is much more involved in the project than you were, that he will be responsible for operation of the ITS of the project upon completion, and that your FDOT role in the development of the package occurred "before it was sent to Tallahassee." Additionally, you advise that your suggestions for location, means of communication, and system to be used were added to the RFP, after your suggestions were scrutinized by the Traffic Design Engineer and the ITS Program Manager (your supervisor). Further, in response to a question from our staff as to your FDOT role regarding development of the language in the RFP for the ITS elements, regarding whether your role consisted merely of assembling or providing information, as opposed to making recommendations or rendering advice, you write:
I will consider my role as engaged in both type [of functions], but mainly as assembling and providing information on location. I was not approached for advice, but was asked by [my supervisor] for him and I to help [the Traffic Design Engineer] develop the language for the RFP and as part of that function, suggested device location based on a concept that was generated using a sticky note paper and a display board with a picture image of the project area. I did not provide advice to [the Consultant Project Manager] directly, but indirectly as part of the group that worked on the ITS RFP.
You advise that as of your leaving FDOT employment and as of the time of your inquiry, the contract on the project had not been awarded, but that it is advertised; that approximately five percent of the project is made up of ITS elements; and that you had no FDOT role in developing RFP language for elements of the project other than the ITS elements. Additionally, you advise that the ITS elements are a small segment of the project and considered a minor work element and, thus, that the selection of the general contractor for the project (with whom you and your company would work) will be influenced by the road work and not by the minor elements. And, you advise that elements of the project besides the ITS elements include roadway widening, drainage, signals, signing and marking, geotechnical, surveying, landscaping, utility services, environmental services, and more.
Further, you advise that you are a licensed engineer, operating in a corporation you own or control, that you desire to work privately on the project as a sub-consultant on a team that is pursuing the project, and that if the team does obtain the project and you work on it, you do not expect the majority of your company's workload to come from the project.
Section 112.3185(3), Florida Statutes,3 provides:
An agency employee may not, 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. When the agency employee’s position is eliminated and his or her duties are performed by the business entity, this subsection does not prohibit him or her from employment or contractual relationship with the business entity if the employee’s participation in the contract was limited to recommendation, rendering of advice, or investigation and if the agency head determines that the best interests of the state will be served thereby and provides prior written approval for the particular employee.
In order for this statute to apply, you, in your FDOT employment capacity, must have personally participated in the procurement or development of the project contract,4 your participation must have been substantial, and you, after leaving FDOT, must hold employment or a contractual relationship with a business entity in connection with the project contract.
Under the situation presented, it is obvious that you, as an FDOT employee, personally were involved in procurement/development functions regarding the contract: recommendation, rendering of advice, or investigation regarding ITS elements of the contract. Also, it is obvious that you hold or will hold employment or a contractual relationship with your company (a business entity) or with other business entities (e.g., the general contractor or other members of the team pursuing the project, if the team is successful), and that such employment or contractual relationship of yours will be in connection with the project contract you helped procure or develop.5 Thus, the issue we must address is whether your participation regarding the project contract was "substantial," a term not defined within the Code of Ethics.
Under the very specific scenario put forth by you and recited herein, we find that your participation regarding the project contract, while personal, was not substantial.
Accordingly, we find that you are not prohibited by Section 112.3185(3), Florida Statutes, from holding employment or a contractual relationship in connection with the project contract.
ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2011 and RENDERED this 26th day of October, 2011.
____________________________________
Susan Horovitz Maurer, Vice-Chair
[1]Because your scenario does not indicate that you ever held a Selected Exempt Service (SES), Senior Management System (SMS), or the equivalent of either an SES or an SMS position with FDOT, we are not treating your inquiry under Section 112.313(9)(a)4, Florida Statutes, which concerns post-public-employment lobbying ("representation").
[2]Widening of I-275 from the Howard Franklin Bridge to Himes Avenue and widening of I-275 from Himes Avenue to the Hillsborough River Bridge.
[3]As stated above, Section 112.313(9)(a)4, Florida Statutes, is not at issue in your inquiry. Also, Section 112.3185(4), Florida Statutes, is not at issue because you represent that the contract was not awarded before you left FDOT employment. We have found that a contract could not have been "within one's responsibility," for purposes of Section 112.3185(4), if the contract did not exist (had not been executed or entered into) until after one left public employment. CEO 02-17 note 5). Section 112.3185(4) provides:
An agency employee may not, within 2 years 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 for contractual services which was within his or her responsibility while an employee. If the agency employee’s position is eliminated and his or her duties are performed by the business entity, this subsection may be waived by the agency head through prior written approval for a particular employee if the agency head determines that the best interests of the state will be served thereby.
[4]See CEO 83-8, in which we found that the statute is directed to those persons who participated in the procurement or development of a contract through decision, approval, disapproval, recommendation, rendering of advice, or investigation.
[5]We have not found that a contract must have been executed or entered into before one left public employment in order for Section 112.3185(3) to apply. CEO 00-6. Such a finding would be incorrect, given that the statute's focus is on contract procurement/development input, not on contract monitoring/managing responsibility.