POSTEMPLOYMENT RESTRICTION

APPLICABILITY TO FORMER FDEP EMPLOYEE
WITH A PARTICULAR WORK HISTORY

To: Name withheld at person's request (Orlando)

SUMMARY:

Under the circumstances presented, a former employee of the Florida Department of Environmental Protection is prohibited under Section 112.313(9)(a)4, Florida Statutes, during the two years after his departure from public employment, from "representation" as to the Department's Central District and certain Divisions of the Department. CEO 11-10, CEO 11-24, and CEO 16-14 are referenced.

QUESTION:

What is the applicability to you, a former employee of the Florida Department of Environmental Protection, of Section 112.313(9)(a)4, Florida Statutes, given your public employment history?

Under the circumstances presented, your question is answered below.

In your letter of inquiry, you state that you retired on March 31, 2017, from the Florida Department of Environmental Protection (FDEP), where you worked in various capacities beginning September 1, 1998. You relate that your positions were designated as Selected Exempt Service (SES) and that, in your most recent position, you were employed in the agency's Central District as a manager responsible for solid waste, air, and environmental resource permitting programs and also for providing opinions to compliance personnel within the Central District. You further state that you participated in monthly teleconferences with personnel in the Division of Waste Management and the Division of Air Resource Management, and in the Environmental Resource Program within the Division of Water Resource Management, in order to seek clarification of policy or technical concerns for those subject areas. In private employment, your activities are limited by Section 112.313(9)(a)4, Florida Statutes, which provides in relevant part:

An agency employee . . . 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 prohibits a former State agency employee who was classified as Senior Management Service (SMS) or Selected Exempt Service (SES) while in public service from personally representing another person or entity for compensation before the former employee's former agency for a period of two years following vacation of the employee's position. Since you were most recently employed at FDEP in a position classified as SES, you are subject to this provision.

As to the extent of your former "agency," the Commission has found that a public employee's agency is the lowest departmental unit within which the employee's influence might reasonably be considered to extend. CEO 11-10 and CEO 11-24. These findings as to "agency" harmonized with our decisions under Section 112.313(7)(a), Florida Statutes (conflicting employment or contractual relationship). In CEO 11-24, we found influence to mean a presence at, or interaction with, a departmental unit or its personnel.

Given the scope of your responsibilities as a manager within the Central District, where your office was physically located, we find that the entire Central District is your former agency and that the Tallahassee-based FDEP Divisions of Waste Management and Air Resource Management and the Environmental Resource Program in the Division of Water Resource Management, with which you had regular monthly interactions and therefore a continuing presence or influence also are your former agencies. Our finding as to the Divisions is comparable to our conclusion based on the factual scenario in CEO 11-24, in which we found that an employee of the Department of Children and Families (DCF) was prohibited, during the two years after she left DCF, from representation contact with DCF's Central Region and also with a DCF program office in Tallahassee with which she had regularly interacted to receive technical assistance, to answer assignments, or to collaborate in work groups. Similarly, you state that your position at FDEP required you to participate in monthly teleconferences with Division offices in Tallahassee during which you consulted with Division personnel to ensure that you were properly implementing policy, statutes, and rules and to receive direction as to how to proceed on issues where clarification was needed.

Based on the facts you have presented, your influence within the specified Divisions occurred by virtue of your presence in those Divisions through interactions with personnel and through relationships formed during regularly-scheduled monthly teleconferences where you, as a manager in a District, sought and received information, clarification, and direction from Division personnel. Thus, you are prohibited during the two years after your retirement (March 31, 2017) from representation contact with the FDEP Central District, plus the FDEP Divisions of Waste Management and Air Resource Management and the Environmental Resource Program in the Division of Water Resource Management, since your description of your work history indicates that you had a presence within the Central District and also within those Divisions.¹

In response to your specific questions as to permitting, waste cleanup, and compliance, you are prohibited during the two-year period from representing a person or entity's (e.g., your client's) interest in permitting actions, waste cleanup issues, and submission of compliance reports before the parts of FDEP set forth above.

"Representing" is defined in Section 112.312(22), Florida Statutes, as actual physical attendance in an agency proceeding, the writing of letters or filing of documents, and personal communications with the officers or employees of an agency. In your private employment, you are not prohibited from engaging in various activities involving "representation" contact with FDEP districts other than the Central District. Further, as long as your activities do not involve any representation contact with the Central District, the Division of Waste Management, the Division of Air Resource Management, or the Environmental Resource Program in the Division of Water Resource Management, the activities would not be prohibited by Section 112.313(9)(a)4, Florida Statutes.

Your question is answered accordingly.²

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 8, 2017, and RENDERED this 13th day of December, 2017.

____________________________________

Michelle Anchors, Chair

^[1] Any difference between your agency determination and the agency determination in CEO 16-14 is due to the facts of your work history.

^[2]In a telephone call with our staff attorney, you stated that you do not expect to be employed or in a contractual relationship in connection with any contract which you helped to procure while you were employed at FDEP or which was within your responsibility or that of anyone who was subordinate to you at FDEP. As long you avoid such employment or contractual relationship, you will not be in violation of the provisions in Section 112.3185(3) and (4), Florida Statutes, which prohibit your employment with a company (prime contractor, subcontractor, or other) in connection with a contract where you were personally and substantially involved in procurement of the contract and also restricts you from working during the two years after you left FDEP in connection with a contract (for contractual services) which was within your responsibility or that of your FDEP subordinates while you were employed at FDEP.