CEO 11-10 - August 3, 2011

POSTEMPLOYMENT RESTRICTIONS

FDOT DISTRICT SEVEN FORMER SMS EMPLOYEE
ENGAGING IN REPRESENTATION BEFORE OTHER
FDOT DISTRICTS AND TURNPIKE ENTERPRISE WITHIN
TWO YEARS OF LEAVING PUBLIC EMPLOYMENT

To: Scott W. Collister (Valrico)

SUMMARY:

A former SMS employee of District Seven of FDOT is not prohibited by the two-year, revolving-door provision of Section 112.313(9)(a)4, Florida Statutes, from representing another person or entity before FDOT Districts, other than District Seven, or before the Turnpike Enterprise, inasmuch as the other Districts and the Turnpike Enterprise were not the employee's "agency." CEO 77-83, CEO 82-75, CEO 83-61, CEO 92-48, CEO 02-12, and CEO 08-18 are referenced; CEO 04-16, CEO 06-1, and CEO 09-5 are receded from.1


QUESTION:

Are you, a former Senior Management Service (SMS) employee of District Seven of the Florida Department of Transportation (FDOT), prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally engaging in compensated representation before Districts of FDOT, other than District Seven, or before the Turnpike Enterprise, for a period of two years following vacation of your District Seven position?


Your question is answered in the negative.


By your letter of inquiry, we are advised that you were employed (in a Senior Management Service, SMS, position) by District Seven of the Florida Department of Transportation (FDOT), from September 9, 2005 through May 12, 2011, as the District's Director of Transportation Development, reporting to the District's Secretary. Further, you advise that in your public position, you were accountable for the actions of over two hundred State employees, supported by consultants, for the programming and budgeting required to execute all planning, design, right of way acquisition, and construction contract document production for District Seven projects in the Adopted Work Program. Also, you advise that other duties of yours included executing all Local Agency Program and federal fund contracts with modal partners (Tampa International Airport, Port of Tampa, etc.) within the five counties of District Seven.

Additionally, you advise that on April 12, 2011, you were told by the District Seven Secretary that he had decided to "go in a different direction," and, thus, that you were being encouraged to resign your position, effective May 12, 2011.2 Further, you advise that statutorily FDOT is decentralized, its operations being organized into seven Districts (each headed by a District Secretary) and a Turnpike Enterprise (headed by an Executive Director), and that in order to provide for efficient operations and to expedite decisionmaking, the Legislature provided for "maximum decentralization to the [D]istricts."3 Also, you advise that as a public employee, you had no involvement whatsoever in the financing, planning, design, or selection of consultants for any transportation projects executed by Districts One, Two, Three, Four, Five, or Six, or by the Turnpike Enterprise, emphasizing that each District operates independently to execute projects financed by the Adopted Work Program (your public position program area) within a District's geographic boundaries.

Thus, you inquire whether Section 112.313(9)(a)4 would prohibit your working for an engineering firm, within two years of your separation from District Seven employment, vis-a-vis Districts of FDOT other than District Seven or vis-a-vis the Turnpike Enterprise, as follows:


  • Discuss with District staff future professional services or design/build contracts that your firm might be interested in pursuing.
  • Signing a letter of response to an advertisement for professional services.
  • Submittal by others of the firm of a proposed project staffing chart, with the chart showing your name as a proposed staffer.
  • Execution of contract documents as an officer of the firm.
  • Discussion of your firm's performance with District staff regarding contracts that were awarded prior to your employment with the firm.


    • Pertinent statutes 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.]


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


    'Employee' means . . . [a]ny person . . . holding a position in the Senior Management Service . . . . [Section 112.313(a)2.a.(I), Florida Statutes.]


    'Represent' or 'representation' means 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. [Section 112.312(22), Florida Statutes.]


    Section 112.313(9)(a)4 prohibits former SMS employees and certain other employees from "representing" for compensation their firms or other persons or entities before their former public "agency" for two years after vacation of their public position.

    In your situation, there is no doubt that you were an SMS employee, there is no doubt that your work for an engineering firm would be compensated, there is no doubt that an engineering firm is a person or entity other than your natural self, and there is no doubt that several of the proposed activities mentioned in your inquiry and specified above fall within the definition of "represent" or "representation." Therefore, the issue is whether your "agency" for purposes of the contact (representation) ban is the whole of FDOT or merely is District Seven. For the reasons specified below, we recede from previous opinions and find, under the public employment work history you present, that your "agency" is District Seven, only, and not the whole of FDOT, for purposes of the two-year prohibition.

    Initially, we note that the only definition of "agency" in the Code is the general Code of Ethics' definition found within Section 112.312(2), Florida Statutes (above), since Section 112.313(9)(a)4 has no additional statutory definition particular to it. In applying the definition in various contexts under Section 112.313(7)(a), Florida Statutes, a prohibition of the Code concerning business-related restrictions applicable to current (not former) public employees, we have found that the term "agency" does not necessarily refer to the whole of a department, division, or other unit of a government entity. Instead, we have found that the term refers to the lowest departmental unit within which a public officer's or employee's influence might reasonably be considered to extend. See, for example, CEO 82-75 (agency of employee of crime laboratory bureau of FDLE is the bureau, not all of FDLE), CEO 83-61 (agency of employee of local government assistance bureau of DCA is the bureau, not all of DCA), and CEO 92-48 (agency of employee of FDOT bureau of motor carrier compliance is the bureau, not all of FDOT).

    In construing the two-year, post-public-employment ban of Section 112.313(9)(a)4, we had, for many years, utilized the definition of Section 112.312(2) in finding that its emphasis was on whether a person had influence in a particular part of a particular government entity, rather than on whether the person lined up under a particular organizational chart labeling one's bureaucratic "department," "division," or similar unit. See many of our opinions cited in CEO 02-12. However, in CEO 02-12, we found that a former employee of the Agency for Health Care Administration (AHCA) was prohibited for two years from representation before all of AHCA, in essence based upon reasoning that AHCA was her "employer" in a commonly understood sense of the word; and we based later FDOT former employee decisions on this reasoning (CEO 04-16, CEO 06-1, CEO 09-5).

    Regarding the two-year ban, it is obvious that it is intended to prohibit a former employee from putting his presence, advocacy, and submissions before the government place he inhabited and the persons who remain there. To construe "agency" in this context to include a much larger slice of the government structure, especially where, as here, the government entity (FDOT) is very much divided up and decentralized, we find would not be a reasonable construction of the statute. Thus, we take the opportunity of your inquiry to harmonize our construction of "agency" for purposes of Section 112.313(9)(a)4 with our construction for purposes of Section 1121.313(7)(a). We do so not merely for the sake of symmetry, but for reasons of substance. The generic evil to be prevented by Section 112.313(9)(a)4 is influence peddling, something not present for you under your employment history, other than as to District Seven. In this regard, language from CEO 82-75, which involved a FDLE employee teaching at a community college, is instructive and persuasive:


    In previous opinions we have said that the Legislature intended by this definition to define a state employee's agency as the lowest departmental unit within which his influence might reasonably be considered to extend. See, for example, CEO 77-83. The subject employee is a handwriting analyst with the Crime Laboratory Bureau, which is within the Division of Staff Services of the Department. It is our view that his agency for purposes of the Code of Ethics is the Crime Laboratory Bureau.

    All Department duties involving the certification of courses are performed within the Division of Criminal Justice Standards and Training. The subject employee's agency is part of a totally separate division of the Department . . . .


    Accordingly, we recede from CEO 04-16, CEO 06-1, and CEO 09-5, to the extent necessary, and find that you are not prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing a person or entity before Districts of FDOT,4 other than your former District (District Seven), for two years following vacation of your public position.


    ORDERED by the State of Florida Commission on Ethics meeting in public session on July 29, 2011 and RENDERED this 3rd day of August, 2011.


    ____________________________________

    Robert J. Sniffen, Chairman

    [1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us) or may be obtained directly from the Commission.

    [2]You advise that you resigned, effective May 12, rather than being terminated immediately, in order to preserve for thirty days your family's benefits flowing from your public employment. And, you emphasize that your separation from public employment was not planned or voluntary, and that it was not the result of any "budgetary action."

    [3]See Section 20.23, Florida Statutes.

    [4]We also find that you are not prohibited as to the Turnpike Enterprise. See our reasoning herein as to FDOT Districts other than your District, and see CEO 08-18.