POSTEMPLOYMENT RESTRICTIONS

FORMER EMPLOYEE OF FLORIDA TURNPIKE ENTERPRISE EMPLOYED
WITH INDEPENDENT CONTRACTOR OF FLORIDA DEPARTMENT OF TRANSPORTATION

To: Name withheld at person's request

SUMMARY:

A former employee of the Florida Turnpike Enterprise who obtained employment with an independent contractor doing business with both the Florida Department of Transportation and the Florida Turnpike Enterprise is prohibited from "representing" her private sector employer before the Florida Turnpike Enterprise, but not the entire Florida Department of Transportation under Section 112.313(9)(a)4, Florida Statutes. CEO 03-10 and CEO 07-4 are referenced.

QUESTION:

Would Section 112.313(9)(a)4, Florida Statutes, prohibit a former Florida Turnpike Enterprise employee from representing her current employer before the Florida Turnpike Enterprise?

Under the circumstances presented herein, your question is answered in the negative.

You advise that you worked for the Florida Turnpike Enterprise (herein "FTE") from March 2002 until May 2007. You advise that the last position you held was "Director of Planning and Production." In that position, you were responsible for managing the offices of Right of Way, Design, Environmental Management, Project Management, and Planning. This was a Senior Management Service position. On June 11, 2007, you became employed by a company that performs consulting work with the Florida Department of Transportation (herein "FDOT").¹ You advise that:

Florida's Turnpike Enterprise was originally created as an authority. In the late 60's the authority was dissolved and the Turnpike was then operated by the Department of Transportation. In the late 80's the Legislature had a choice whether to completely remove the tolls from the Turnpike and roll it fully into the Florida Department of Transportation or recreate it as its own entity. They decided that the Turnpike would best serve the state as a unique asset for the State if it continued to operate as a toll facility. In 2002, the Legislature re-confirmed their previous decisions to allow the Turnpike to become a proving ground for transportation development. At that time, it was renamed the Florida Turnpike Enterprise with the ability to create its own policies and procedures. The Enterprise's funding, which pays for both projects and salaries of its employees, comes completely from toll revenue it collects on its system.

Statutorily, the Legislature required that the operations of the Florida Department of Transportation "shall be organized into seven districts, each headed by a district secretary and a turnpike enterprise headed by an executive director."² Responsibility for the turnpike system is delegated by the Secretary to the Executive Director of the Turnpike Enterprise, who serves at the pleasure of the Secretary. The Executive Director reports directly to the Secretary.³ To facilitate the most efficient and effective management of the Turnpike Enterprise, including the use of best business practices employed by the private sector, the Turnpike Enterprise is exempt from Departmental policies, procedures, and standards, subject to the Secretary having the authority to apply any such policies, procedures, and standards to the Turnpike Enterprise from time to time as deemed appropriate.⁴

In light of the foregoing, you inquire about the scope of Section 112.313(9)(a)4, Florida Statutes. Specifically, you inquire whether Section 112.313(9)(a)4, Florida Statutes, would prohibit you from engaging in "representation" of your employer before the entire FDOT or only prohibit you from engaging in "representation" of your employer before the Florida Turnpike Enterprise?

Section 112.313(9)(a)4, Florida Statutes, 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.

This Section prohibits a former agency employee from representing another person or entity for compensation "before the agency with which he or she was employed" for a period of two years following vacation of his or her position. The term "employee" is defined in Section 112.313(9)(a)2.a, as including members of the Selected Exempt or Senior Management Service. As you advise that you were a Senior Management Service employee, Section 112.313(9)(a) applies to you.

Therefore, we must identify "the agency with which you were employed" for purposes of the statute. We have found that entities created "within" agencies may be considered to be separate agencies for purposes of post-employment restrictions. In CEO 03-10, we advised the former director of legislative affairs for the Department of Management Services that he would not be prohibited from representing clients before so-called "dotted line" agencies (such as the Correctional Privatization Commission and the Florida Commission on Human Relations) that were housed within, but not under the control of, that department, noting that, "The Supreme Court has recognized that independent agencies can be created and assigned to another agency for administrative purposes." In CEO 07-4, we found that the Department of Financial Services and the Financial Services Commission are separate agencies for purposes of the post employment restrictions. We based that opinion on the following: there were separate agency heads, neither exercised supervisory control over the other, and jurisdiction of each, while complementary in some respects, did not overlap. The pertinent enabling statutes in CEO 07-4 are similar to those creating the Florida Turnpike Enterprise. See Section 20.121, Florida Statutes.

The Executive Director is the head of the Florida Turnpike Enterprise throughout the State. By statute, the Executive Director is responsible for the turnpike system. The Turnpike Enterprise is to conduct business like a private business entity. It is not bound by FDOT policies, procedures, and standards, subject to the Secretary having the authority to apply any such policies, procedures, and standards to the Turnpike Enterprise from time to time as deemed appropriate. While the Secretary of FDOT has the authority to apply departmental standards, you advise that the Secretary has not done so. Further, the FDOT has promulgated no rule applicable to the Florida Turnpike Enterprise. You advise that the FTE's budget, including its employees' salaries, comes entirely from toll revenue. By statute, the turnpike is a single budget entity.⁵ In light of the foregoing, we find that the Florida Turnpike Enterprise and the Florida Department of Transportation are separate agencies.

Accordingly, we find that Section 112.313(9)(a)4, Florida Statutes, prohibits you from representing your current employer before the Florida Turnpike Enterprise. We caution that the definition of "represent" is broad under the Code of Ethics for Public Officers and Employees.⁶ This prohibition applies until June 11, 2009. However, that Section does not prohibit you from representing your employer before the entire Florida Department of Transportation. This opinion is limited to the facts herein.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 25, 2008 and RENDERED this 30th day of July, 2008.

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Albert P. Massey, III, Chairman