POSTEMPLOYMENT RESTRICTIONS

FORMER FDOT EMPLOYEE
REPRESENTING FDOT CONTRACTOR

To: Name withheld at person’s request (Lake City)

SUMMARY:

A former employee of the Florida Department of Transportation (FDOT), District Two, who was employed with FDOT, District Two, since 1983 would be “grandfathered” under Section 112.313(9)(a)6, Florida Statutes, from the representation restriction in Section 112.313(9)(a)4, Florida Statutes. CEO 94-20, CEO 11-10, and CEO 11-24 are referenced.¹

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 by FDOT, District Two, beginning in May 1983 and continuously until your retirement in December 2014?

Your question is answered in the affirmative.

You inquire as to whether, and to what extent, you are subject to the two-year, post-public-employment, “representation” restriction contained in Section 112.313(9)(a)4, Florida Statutes, given your public agency work history. By your letter of inquiry you relate that you began working for the FDOT, District Two, in May 1983. You further relate that you will be leaving from the position of District Design Engineer (a Selected Exempt Service position) on December 30, 2014. Thereafter, you intend to begin working for a private consulting firm that may pursue contracts with the FDOT. As such you have inquired whether pursuant to your continuous employment since 1983 with FDOT in District Two 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,² 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.³ 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 exemptions which state 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,” and that it is not applicable to “[a] person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989.” This provision “grandfathers” persons continuously employed by their former agency since prior to, or on, July 1, 1989. CEO 94-20. In the instant case, you specified that you began employment with the FDOT, District Two, in May 1983 and have been continuously employed by the FDOT in District Two until your retirement in December 2014. Therefore, we find that the exemption contained in Section 112.313(9)(a)6, Florida Statutes, would operate to exempt you from the representation restriction in Section 112.313(9)(a)4, Florida Statutes.⁴

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 12, 2014, and RENDERED this 17th day of December, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]Prior opinions of the Commission on Ethics are available at www.ethics.state.fl.us.

^[2]Section 112.313(9), Florida Statutes, provides in relevant part:

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. [Section 112.313(9)(a)2.a.(I), Florida Statutes]

4. 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]

6. This paragraph is not applicable to:
a. A person employed by the Legislature or other agency prior to July 1, 1989;
b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989. [Section 112.313(9)(a)6.a and b., Florida Statutes]

^[3]In CEO 11-10, the Commission stated that the restriction on representation in Section 112.313(9)(a)4 refers to an employee’s “agency” as the lowest departmental unit within which the employee’s influence might reasonably be felt, and, thus, the influence of an FDOT employee might reasonably be considered to extend to the one or more districts or offices which the employee’s work concerned. Under the facts you have presented, your former “agency” is limited to FDOT, District Two.

^[4]See CEO 11-24, viewable on the Commission on Ethics’ website, for a discussion of the restrictions of Section 112.3185, Florida Statutes, which operate independent of the restriction of Section 112.313(9)(a)4, and contact our staff with specific questions, if any, you might find relevant to Section 112.3185, Florida Statutes.