POSTEMPLOYMENT RESTRICTIONS

EMPLOYEE OF FLORIDA DEPARTMENT OF TRANSPORTATION
DISTRICT ACCEPTING OFFER OF EMPLOYMENT FROM CONTRACTOR
CONTRACTING WITH THE DEPARTMENT

To: Name withheld at person's request

SUMMARY:

An employee of the Florida Department of Transportation would not be prohibited from accepting employment with an independent contractor responsible for maintaining certain Department assets, because her involvement with the contract was not "substantial;" nor would the salary she would receive be limited under Section 112.3185, Florida Statutes. CEO 82-67, CEO 83-8, CEO 88-32, CEO 00-6, CEO 01-6 and CEO 02-17 are referenced.

QUESTION:

Would Section 112.3185, Florida Statutes, prohibit you, a Florida Department of Transportation Career Service employee, from leaving that employment and becoming employed by an independent contractor, or limit your salary in that job?

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

You advise that you are a Career Service employee of the Florida Department of Transportation ("FDOT"). You have been offered employment with an independent contractor ("Contractor") which would begin after you resign from FDOT. You advise that the Contractor is responsible for maintaining the FDOT property and structures on Interstate 75 in Manatee, Sarasota, Lee, Collier, and Broward Counties. The contract, referred to as the "Ultra" contract, was the result of an effort to consolidate several asset maintenance contracts. The "Ultra" contract contemplates the provision of mowing services, fence maintenance, and maintenance of structures at rest areas. You were not involved in the decision to create the "Ultra" contract. You advise that you did not participate in any of the restructuring, funding, advertising, or extension process. You advise that another employee was "responsible for creating, assembling, structuring, editing, reviewing, evaluating and processing the proposed contract up to the point it was presented to the procurement division for advertising and letting." You advise that in response to this employee's request you provided "minor technical and editorial input into the proposed contract's wording and supporting technical data." Additionally, you state:

The contract is so broad in its scope (manage, maintain, and facilitate the operation of 220 miles of interstate and rest areas in seven counties) that my minor input in modifying the contact (clarifying interchange mowing width and timeliness of panther fence repair, and informing the potential contractors of the new warranty inspection and landscaped area coordination responsibilities) was not substantive in its effect on the vast amount of work already required under the boilerplate.

Thereafter, an Assistant District Maintenance Engineer requested staff's help answering prospective bidders' Requests for Additional Information. You advise that you provided additional technical data in response to her request for help. The Assistant District Maintenance Engineer, in turn, drafted responses to the Requests for Additional Information, combining staffs' answers, which were given to the District Contracts Administrator. The District Contracts Administrator then communicated them to the potential bidders. Prior to bidding, you arranged times for some of the facilities to be visited by bidders. Other than the foregoing, you did not participate any further in the formation of the "Ultra" contract.

The "Ultra" contract was awarded to the Contractor in August 2007. This was done through a multi-step procurement and selection process, in which you were not involved in any way. You also advise that you did not participate in reviewing the technical proposals or evaluating the bids. For various reasons, the "Ultra" contract's execution was delayed. During the delay, the majority of the services contemplated in the "Ultra" contract were performed by the Contractor under a temporary contract you called the "Interim" contract.

After the "Ultra" contract was awarded, there were significant changes in your employment with FDOT. First, your position was changed to a "District position" which was to be placed under the District Asset Maintenance Program Administrator. The responsibility for the inspector you supervised was transferred to the District Asset Maintenance Program Administrator. You were advised that you would have less administrative duties and would no longer be a project manager. These organizational changes took place upon the effective date of the "Interim" contract. You advise that since the hiring of the District Asset Maintenance Program Administrator your duties have changed drastically. This Administrator has performed the role of project manager for both the "Interim" and "Ultra" contracts. You advise that you are only assigned secretarial support duties. You advise that there are no inspection duty needs left for you.

In light of the foregoing facts, you inquire whether the provisions of Section 112.3185, Florida Statutes, would apply to prohibit proposed employment with the Contractor or to limit your salary with the Contractor. We first address Section 112.3185(3), Florida Statutes, which provides:¹

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) restricts the employment that you may seek after leaving FDOT by prohibiting you from becoming employed by a business entity in connection with a contract in which you participated personally and substantially through "decision, approval, disapproval, recommendation, rendering of advice, or investigation." In CEO 83-8, we limited our interpretation of this list of activities to the procurement process.

In CEO 88-32 and subsequent opinions, we referred to the Code of Federal Regulations for guidance on how to interpret "personally" and "substantially." Those opinions cite the language of Office of Government Ethics' Regulations, which provide:

To participate 'personally' means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. '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. [5 C.F.R. Section 2637.201(d)] [Emphasis Supplied.]

We first address whether you participated "personally" and "substantially" through decision, approval, disapproval, recommendation, rendering of advice, or investigation in connection with the "Ultra" contract while an FDOT employee.² You provided emails that you sent in response to others' requests for assistance in authoring the contract. Those emails contain substantive changes clarifying the duties of the successful bidder. For example, one of the changes that you recommended being made was the requirement to mow or disc a five to ten foot strip to allow for fence maintenance. You also made suggestions concerning the hours that the contractor would be required to provide security at a rest area. You also gave information which was used in the responses to Requests for Additional Information from three contractors. In light of your direct participation in the formation of the language of the contract, we find that you participated "personally" in the "Ultra" contract formation.

Next, we turn to the inquiry of whether your involvement with the "Ultra" contract was "substantial." You advise that the final contract incorporates by reference all FDOT manuals, topics, procedures, policies, standards and design indices as well as the winning bidder's technical proposal. You further state that the final contract consists of 527 pages of text, excluding those documents incorporated by reference. You have provided approximately thirty five pages titled "Scope of Services, Highway Asset Maintenance Contract" and highlighted which parts of the "Scope" you contributed. Of the "Scope," your participation contributed approximately twelve sentences. Those sentences, as you represented, concern "clarifying interchange mowing width and timeliness of panther fence repair, and informing the potential contractors of the new warranty inspection and landscaped area coordination responsibilities."

In determining whether your participation was "substantial", we are mindful of 5 C.F.R. Section 2637.201(d) which contemplates the importance of the employee's effort in determining that she participated substantially. We also note that under that Section of the Code of Federal Regulations, substantiality "requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue." In light of the foregoing, we find that your participation was not substantial. This finding is bolstered by your limited involvement in the procurement process, the multi-stage nature of the process, and the fact that you were not responsible for creating the entire contract. See CEO 00-6 and CEO 02-17. Therefore, you are not prohibited by Section 112.3185(3), Florida Statutes, from accepting this subsequent employment with the Contractor.

We now turn to Section 112.3185(4), Florida Statutes, which provides:

An agency employee may not, within two 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) prohibits you from becoming employed by a business entity other than an agency in connection with a contract for contractual services which was within your responsibility as an employee of FDOT during the two year period following vacation of your public position.

In CEO 82-67, we noted that Section 112.3185(4) differs from Section 112.3185(3) in three ways. First, it is more limited as to the time period it governs--specifically, a two-year period following resignation or termination. Secondly, it is more general as to what activities of a former agency employee are prohibited. Thirdly, it applies only to contracts for contractual services. See CEO 01-6. The Code of Ethics for Public Officers and Employees does not define "official responsibility." By analogy to the federal standard, however, it is defined at 18 U.S.C. 202 as, "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve or disapprove, or otherwise direct Government actions." In determining whether a contract was within an employee's official responsibility, we again turn to the Code of Federal Regulations which provides:

Determining official responsibility. Ordinarily, the scope of an employee's 'official responsibility' is determined by those areas assigned by statute, regulation, Executive Order, job description or delegation of authority. All particular matters under consideration in an agency are under the 'official responsibility' of the agency head, and each is under that of any intermediate supervisor having responsibility for an employee who actually participates in the matter within the scope of his or her duties. [5 CFR Section 2637.202(b)(2)].

As described above, you have represented that your duties were significantly reduced. In your letter dated June 19, 2008, you provided a list of clearly clerical duties which you advise is all that you have done since the effective date of the "Ultra" contract.³ Additionally, you advise that the "Ultra" contract has been in effect for only 44 days as of May 15, 2008. In light of the foregoing, we find that the employment with the Contractor would not be in connection with a contract which was within your responsibility while an FDOT employee. Therefore, you are not prohibited by Section 112.3185(4), Florida Statutes, from accepting the employment offer with the Contractor.

Finally, Section 112.3185(5), Florida Statutes, is inapplicable to the circumstances herein. That Section does not apply in a situation in which a former employee left a public agency to work for a business entity contracting with the agency. See CEO 93-2 and CEO 05-13, where we emphasized that the statute addressed the sum of money paid to the former employee by the agency.

Though we have found that Section 112.3185 would not prohibit your employment with the Contractor, we caution you about the potential applicability of Section 112.313(8), Florida Statutes.⁴ This opinion is limited to the facts as stated herein.

Accordingly, we find that you would not be prohibited from accepting the offer of employment from the Contractor.

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