POSTEMPLOYMENT RESTRICTIONS
FORMER FDOT EMPLOYEE EMPLOYED BY
COMPANY CONTRACTING WITH FDOT
To: Name withheld at person's request (Lakeland)
SUMMARY:
Advice about post-employment restrictions is provided to a former employee of the Florida Department of Transportation under her work history. CEOs 12-4, 11-24, 08-17, 05-13, 02-17, and 00-6 are referenced.1
QUESTION:
What is the applicability to you, a former employee of the Florida Department of Transportation ("FDOT") now working for a private firm, of the post-public-employment restrictions of Part III, Chapter 112, Florida Statutes, under your FDOT work history and in relation to particular contracts as described herein?
Under the situation presented, your question is answered as set forth below.
By your letter of inquiry, correspondence from our staff to you, and additional correspondence from you to our staff, you relate that you resigned from employment with the Florida Department of Transportation ("FDOT") in December 2011, vacating a Career Service System position (Project Manager in FDOT District One). Further, you state that you began employment with FDOT in 2006, in another Career Service position, and that all of your positions at FDOT were Career Service positions.
In addition, you relate that you have accepted a position with a private firm, that your private work will not involve any FDOT contract which existed (which had been entered into) while you were employed by FDOT and which was monitored or managed by you or your FDOT subordinates, and that your private work likely will involve a FDOT contract which was entered into after you left FDOT but regarding which you had no FDOT procurement/development role.
Also, you state that your firm will be competing for FDOT's award of two consultant construction engineering and inspection ("CEI") contracts which are expected to be entered into later this year. Further, you relate that you had a personal role as an FDOT employee regarding both of these CEI contracts, but that you do not consider the role to have been "substantial." Regarding the two contracts and your FDOT role, you state that the contracts are based on sixty pages of boilerplate language as to which you had no input, but that you did "review" the scope of services and the man-hour estimate. And, you write:
I was asked to perform the review out of courtesy since I potentially could have been assigned as the project manager after the contract execution. Therefore, I would have had to discuss any errors or changes with the [FDOT] consultant contracts manager. The consultant contracts manager would take my comments into consideration and could or could not make the suggested changes. . . . . Therefore, my review was not required and not a part of the process to develop the contract. The consultant contracts manager, who was responsible for this step of the process, asked me to review the contract and after my review it went back to the consultant contracts manager as he had the authority and responsibility to develop the contract for the Bartow Operations Office.
Further, you state that in your FDOT position you did not have the ability to make the decision as to what scope of services or man-hour estimate would be the scope and estimate in the contracts; that you did not have the ability to approve or disapprove the scope or estimate; that you did not conduct investigation as to the scope or the estimate; and that you did not, at least not in an affirmative sense, make a recommendation or render advice as to the scope or estimate. Additionally, regarding the two contracts, which, you emphasize, have yet to be awarded, you write:
The CEI contracts procurement and selection is a multistep process with many different [parts of FDOT] involved. While working as a Project Manager I did not have any authority or responsibility on any contract until they were executed. I resigned from the department well before these contracts were scheduled to be advertised[;] therefore I resigned months before I would have had any responsibility or authority related to the above referenced contracts . . . .
. . . the contracts manager [, an FDOT employee,] develops the man-hour estimate based on the required staff needed to manage the project along with the current projected construction project time. The scope of services and man-hour estimate will remain in draft form through advertisement, selection and negotiations and will not be finalized until the CEI contract is executed. The portion of the scope of services and the man-hour estimate I reviewed was directly related to the current projected construction contract time. On both projects, the construction contract time has changed since my review (and later resignation from the department) and yet again, even prior to advertisement (scheduled in mid-February), the scope of services and the man-hour estimate will be revised.
Also, in response to our staff's question to you as to whether your passing along the scope of services and man-hour estimate without affirmative recommendation of change by you ("as is") to the consultants contracts manager substantively amounted to a recommendation by you regarding the scope and estimate, you write:
I did not have the authority or responsibility to recommend approval or disapproval of the documents. The consultant contracts manager was responsible for representing the Bartow Operations Office throughout the contract development process, negotiations with awarded/selected firm and through execution of the contract. I only reviewed 2 sections of the 20 page (plus) scope. Therefore, sending the scope back "as is" to the consultant contracts manager (CCM) may default to a recommendation on those two sections but not a recommendation for the entire document. In addition, I reviewed the manhour estimate to ensure it matched the two sections I reviewed in the scope (completed by the responsible [FDOT] employee, consultant contracts manager, CCM). Therefore, by sending the estimate back "as is" [I] informed the CCM that the estimate passed a quality control check, [and that] it appeared there were no errors[; the sending back was] not a recommendation of the man hour estimate in its entirety.
Restrictions (prohibitions)2 relevant to your inquiry provide:
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. [Section 112.313(9)(a)4, Florida Statutes.]
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. [Section 112.3185(3), Florida Statutes.]
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. [Section 112.3185(4), Florida Statutes.]
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. 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. [Section 112.3185(5), Florida Statutes.]
Regarding Section 112.313(9)(a)4, which prohibits "representation"3 by certain former public employees before their former public agency for two years after vacation of public position, we find that you are not restricted. Your work history shows that you always were a Career Service System employee of FDOT, not a Selected Exempt Service ("SES") employee, a Senior Management Service ("SMS") employee, or other type of employee encompassed by the statute. CEO 12-4.
As to Section 112.3185(4), which would prohibit, for two years after your vacation of FDOT employment, your working for the firm in connection with any contract for contractual services which was within your responsibility as a FDOT employee, we find that you are not restricted regarding any contract which was not in existence (which was not entered into) until after you left FDOT employment. This would include the two CEI contracts which may be, if your firm is successful, entered into between your firm and FDOT later this year.4 See, for example, CEO 11-24, finding that in order for a contract to have been "within one's responsibility" as a public employee, the contract would have to have existed while one was a public employee.
Concerning Section 112.3185(5), we find that you are not restricted as to the two CEI contracts your firm is seeking. This statute applies to situations in which a former public employee is paid by his former public agency either directly as a natural person or via the former employee's closely-held or controlled entity; it does not apply in situations, such as the one you present, where the former public employee works arms-length for a bona fide entity. CEO 05-13.
Regarding Section 112.3185(3), unlike Section 112.3185(4), it can apply to a contract not coming into existence (not entered into) until after one leaves public employment, provided that one had, while a public employee, the requisite personal and substantial procurement/development role regarding the "future" contract. See, for example, CEO 11-24 (note 6). More particularly, in order to be restricted by Section 112.3185(3), a former public employee must hold employment or a contractual relationship with a business entity, the employment/contractual relationship must be in connection with a particular contract, the former employee (while he or she was a public employee) personally must have had a procurement/development role regarding the contract, and that personal role must have been "substantial." If one or more of these elements is missing from a given former public employee's situation as to a particular contract or contracts, he or she is not restricted by Section 112.3185(3) as to their post-public-employment private work regarding those contract(s).
As to the two CEI contracts which your firm seeks, we find that your involvement (reviewing the scope of services and the man-hour estimate) was, obviously, personal to you, and we find that it involved a procurement/development role (in substance, a recommendation). However, under the situation presented, we do not find that your role was "substantial." While "substantial" is not defined within the Code of Ethics, we have noted its meaning in Federal law, in applying it in particular situations. See CEO 00-6, in which we quoted from Federal law5:
"Substantially" means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial.
In your situation, too, we find this quote instructive. It is apparent that your FDOT involvement with the development of the two contracts (which was a limited "review" of scope of services and man-hour estimates which were, or will be, altered at least once since your limited input) should not be considered important or critical to the formation of the contracts. Our finding as to your situation does not thwart the purpose of Section 112.3185(3): to prevent a public employee from having substantial input into the design of a contract, thereby "tailoring" it for award to a particular company or firm, which would then "reward" the former public employee with "golden parachute" or "feathered nest" private employment in connection with the same contract. Further, we find that your situation is similar to other decisions of ours finding Section 112.3185(3) not to be applicable. See, for example, CEO 08-17 (employee of FDOT District accepting offer of employment from contractor contracting with FDOT) and CEO 02-17 (former FDOT employee employed by firm in connection with firm's research for FDOT). In CEO 08-17, the employee recommended changes to mow or disc a ten-foot strip to allow for fence maintenance, made suggestions concerning the hours the contractor would be required to provide security at a rest area, and contributed approximately twelve sentences to a scope of services regarding mowing width, timeliness of fence repair, and informing potential contractors about new warranty inspection and landscaped area coordination responsibilities. In CEO 02-17, the employee had limited involvement, subordinate to the involvement of others, in a multi-stage process, where contract content substitutions occurred after the employee's involvement.
Your inquiry is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 30, 2012 and RENDERED this 4th day of April, 2012.
____________________________________
Robert J. Sniffen, Chairman
[1] Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
[2] For purposes of Section 112.313(9)(a)4, Florida Statutes, but not for purposes of Section 112.3185, Florida Statutes, Section 112.313(9)(a)2.a., Florida Statutes, does not define "employee" to include persons in the Career Service System, unless they hold the equivalent of Selected Exempt Service employment, Senior Management Service employment, or certain other employment. For purposes of Section 112.3185, "employee" has its usual and ordinary meaning. .
[3] Defined in Section 112.312(22), Florida Statutes.
[4] The contracts you would not be restricted in regard to under Section 112.3185(4) also include contracts which were in existence when you were at FDOT, if, in fact, the contracts were not monitored, managed, or similarly administered by you or your FDOT subordinates.
[5] Then, at 5 C.F.R. Section 737.5(d). Similar language now is found in 5 C.F.R. Part 2641.201.