POSTEMPLOYMENT RESTRICTIONS

FORMER FDOT EMPLOYEE
EMPLOYED BY FDOT CONTRACTOR

To:        Name withheld at person's request (Plant City)

SUMMARY:

A former employee of the Florida Department of Transportation (FDOT) who was employed with FDOT since 1985 would not be exempt under Section 112.313(9)(a)6, Florida Statutes, from the representation restriction in Section 112.313(9)(a)4, Florida Statutes, because his "agency" employment in District 7 began after July 1, 1989. CEO 94-20, CEO 00-1, CEO 00-6, CEO 02-12, CEO 04-16, CEO 06-1, CEO 09-5, CEO 11-10, CEO 11-24, CEO 12-04, and CEO 12-22 are referenced.

QUESTION:

Would Section 112.313(9)(a)6, Florida Statutes, operate to exempt you from the representation restriction in Section 112.313(9)(a)4, Florida Statutes, where you were employed in FDOT District 1 beginning in 1985 and then employed in FDOT District 7 from 1990 until your recent retirement?

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

By your letter of inquiry and additional information provided, you relate that you began employment in 1985 in District 1 of FDOT and that in 1990 you transferred to District 7, where you most recently were employed as District 7 Railroad Administrator, a Selected Exempt Service ("SES") position. You further relate that, after retiring from FDOT on January 2, 2014, you expect to begin work with a private firm where you anticipate working on multiple phases of the firm's operations, including marketing for contracts with FDOT. You ask whether, given your continuous employment since 1985 with FDOT in Districts 1 and 7, you are "grandfathered" under Section 112.313(9)(a)6, Florida Statutes, and, therefore, unrestricted in your representation of your prospective employer before personnel in any of the FDOT districts.

Section 112.313(9)(a)4, Florida Statutes, prohibits a former agency employee who was classified as Senior Management Service (SMS) or Selected Exempt Service (SES), or certain other statuses, from personally "representing" another person or entity for compensation before the former employee's former agency for two years following the vacation of his or her position. Since you indicate that your most recent position at FDOT was classified as SES, this restriction, standing alone, would apply to you. However, Section 112.313(9)(a)6, Florida Statutes, contains an exemption which states that Section 112.313(9)(a)4 is not applicable to "a person employed by the Legislature or other agency prior to July 1, 1989." Because you indicate that you began your FDOT employment in 1985, the question in your situation is whether "agency" in the context of the exemption to the representation restriction applies to your representation of your employer before all of FDOT or before a particular district or districts of FDOT.

We have found that the exemption to the lobbying restriction does not apply to former public employees who were employed, beginning prior to July 1, 1989, in various positions with more than one distinct State legislative or executive branch agency. CEO 94-20 (affirmed, Anderson v. Commission on Ethics, 651 So. 2d 1198, (Fla. 1st DCA 1995); CEO 00-1; and CEO 00-6. However, we have not yet addressed a situation in which a public employee has moved from one district to another within the same entity (department) during a course of continuous employment within that same entity which began prior to July 1, 1989. Beginning in 2002, we construed "agency" for purposes of the representation restriction in Section 112.313(9)(a)4, Florida Statutes, to mean "the agency with which [the employee] was employed," based on the commonly understood sense of the word "employed." See CEO 02-12; CEO 04-16; CEO 06-1; and CEO 09-5.¹ However, in CEO 11-10, we receded from previous opinions, finding that a former FDOT employee who had worked in District 7 would be restricted from representation for two years after departure from FDOT before personnel in District 7 only, concluding that the term "agency" for purposes of the representation restriction in Section 112.313(9)(a)4 is "the lowest departmental unit within which a public officer's or employee's influence might reasonably be considered to extend." In so doing, we explained that we were harmonizing the construction of "agency" for purposes of Section 112.313(9)(a)4 with our construction of the term "agency" for purposes of Section 112.313(7)(a) (Conflicting Employment or Contractual Relationship) and also for the substantive purpose of restricting representation only in the specific FDOT district in which "the generic evil" of influence peddling by the former employee might be expected to occur.

In order to be consistent and because exemptions are generally construed narrowly, we find in the present scenario that, for purposes of Section 112.313(9)(a)6, the term "agency" continues to mean "the lowest departmental unit within which a public officer's or employee's influence might reasonably be considered to extend," which in your case would be FDOT District 7. Since you state that you were not employed in District 7 prior to July 1, 1989, the exemption in Section 112.313(9)(a)6 would not apply to your situation. Thus, you would be prohibited from representing your firm during the two years after your departure from FDOT before personnel in District 7,² which we have determined to be your "agency."

Therefore, you are prohibited from representing a person or entity before personnel in District 7 during the two years following vacation of your public position.³ However, you are not restricted from representation as to other FDOT districts, as to the Turnpike Enterprise, as to other entities of Florida State government, or as to local government.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on January 24, 2014, and RENDERED this 29th day of January, 2014.

____________________________________

Morgan R. Bentley, Chairman

^[1] The Code of Ethics for Public Officers and Employees defines "agency" as follows:

'Agency' means any state or regional, county, local, or municipal 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.]

^[2] "Representing" is defined in Section 112.312(22) 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." In CEO 11-24 (Footnote 10), the Commission stated:

We have found that 'representation' does not include some types of contact necessary to merely carry out or deliver on a contract involving one's former public agency, provided the contact is not for the purpose of trying to get the agency to do something. CEO 09-5. Thus, we find that whether, as stated in your inquiry, "[you] may contact your former agency while performing any actions necessary to operate [the corporation]," or "[you may] contact DCF while carrying out [your] duties as Executive Director of [the corporation],"depends on whether the contact is or is not for the purpose of trying to get your former agency to do something (for example, to award a contract or a contract extension, or to achieve the agency's forgiveness of a possible nonperformance under a contract), as opposed to merely being rote, delivery-type contact. [Emphasis added.]

See also CEO 09-5; CEO 12-04 (Footnote 6); and CEO 12-22.

^[3] Also relevant to your situation is Section 112.3185(3), Florida Statutes, which states in pertinent part:

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.

This statute prohibits you from going to work for a company (prime contractor, subcontractor, or other) in connection with a contract where you were personally and substantially involved in the procurement of the contract. You state that you were not involved in procurement activities while employed at FDOT related to any contracts between FDOT and your prospective employer. Therefore, you would not be in violation of Section 112.3185(3), Florida Statutes, in your new position with the private firm.

Further, Section 112.3185(4), Florida Statutes, states in pertinent part:

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.

This provision prohibits you, for two years from the date you leave FDOT, from going to work for any company in connection with a contract for contractual services which was within your responsibility or that of your FDOT subordinates while you were with FDOT. You state in your anticipated employment you will have no responsibilities with regard to the company's current contracts with FDOT District 7 which have been within your responsibility or the responsibility of your subordinates during your employment at FDOT. Therefore, your proposed activities with your prospective employer would not be restricted under Section 112.3185(4).