POSTEMPLOYMENT RESTRICTIONS

FDOT FORMER EMPLOYEE EMPLOYED BY
OR CONTRACTING WITH SPACE FLORIDA

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

SUMMARY:

A former Career Service employee of the Florida Department of Transportation (FDOT) would not be subject to postemployment restrictions under Sections 112.313(9)(a)4, 112.3185(3), or 112.3185(4), Florida Statutes, after his departure from FDOT if he were to work as an employee or contractor for Space Florida or for one of its contractors in connection with a master grant agreement between FDOT and Space Florida. CEO 11-24 and CEO 88-32 are referenced.

QUESTION:

Would you, the Spaceport Development Manager at FDOT, be subject to postemployment restrictions if you were to work as an employee or contractor for Space Florida or for one of its contractors in connection with a master grant agreement after your retirement from your public position?

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

In your letter of inquiry, you state that you are employed by FDOT as Spaceport Development Manager, which is a Career Service position within the central office of FDOT. You state that your primary responsibility is the management of a master grant agreement with Space Florida (an independent special district) and that the master grant provides resources for program development and project management for Space Florida, which was created by laws codified in Chapter 331, Florida Statutes, to foster the growth and development of a sustainable and world-leading aerospace industry in Florida. You explain that this agreement between FDOT and Space Florida is authorized by statute and was not obtained through a procurement process. In a telephone conversation with our staff, you explained that you are the facilitator of Space Florida projects which are carried out under the master grant agreement through task work orders financed by FDOT funds and that such projects are completed by consultants who contract with Space Florida and are monitored by employees of Space Florida. You state that you also manage a task work order under a separate contract which is due to expire in July 2017. You state that you plan to retire from FDOT when you complete your Deferred Retirement Option Program (DROP) in June 2018 and that you are interested in possible employment or a contractual position with Space Florida or one of its consultants after your departure from FDOT. You ask whether you would be prohibited under the Code of Ethics from working in connection with the Space Florida master grant agreement as an employee of Space Florida, a consultant to Space Florida, or an employee or subcontractor of a Space Florida consultant.

The provisions of the Code of Ethics that may be implicated¹ in your scenario are Sections 112.3185(3) and 112.3185(4), Florida Statutes,² applicable to former State agency employees. Section 112.3185(3), Florida Statutes, states in relevant 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 private business (prime contractor, subcontractor, or other) in connection with a contract where you were personally and substantially involved in the procurement of the contract. Space Florida is a statutorily-authorized independent special district, and, as such, is a government entity, not a business entity. See CEO 88-32 (Question 1).³ Further, the master grant agreement between FDOT and Space Florida was authorized by statute, rather than being obtained under the process for State agency procurement of commodities and contractual services set forth in Chapter 287, Florida Statutes. If you were to be employed by a business entity for work in connection with the Space Florida master grant agreement, you would not be subject to the prohibition under Section 112.3185(3) because you could not have participated in a nonexistent State agency procurement process.

Also relevant is Section 112.3185(4), Florida Statutes, which 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 after the date of your departure from FDOT, from going to work for any business entity 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 that the master grant agreement is within your responsibility at FDOT. However, this agreement is not a contract for "contractual services,"⁴ because Space Florida is neither an individual nor a firm (independent contractor). The master grant agreement requires FDOT to provide financial assistance to Space Florida, not in exchange for contractual services by an independent contractor, but rather for development of a spaceport program pursuant to a joint participation agreement.⁵ Therefore, because the master grant agreement is not a contract for contractual services and because consultants working on the spaceport program are contractors with Space Florida, rather than with FDOT, your employment or contractual relationship with Space Florida or with a business entity contracting with Space Florida would not be restricted by Section 112.3185(4) during the two years after your departure from FDOT even if your work is in connection with the master grant agreement.⁶

Therefore, we find that if you were to contract with or be employed by Space Florida or a business entity contracting with Space Florida for work in connection with the master grant agreement after you leave FDOT, you would not be subject to the postemployment restrictions in Sections 112.313(9)(a)4, 112.3185(3) or 112.3185(4), Florida Statutes.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 9, 2017, and RENDERED this 14th day of June, 2017.

____________________________________

Matthew F. Carlucci, Chair

^[1]Since you state that your present position is classified as Career Service (and, apparently, has been Career Service for some time), you would not be subject to Section 112.313(9)(a)4, Florida Statutes, which prohibits, during the two years after vacating a covered "employee" position, any lobbying or other representation before the former agency of a State agency employee whose public position was classified as Selected Exempt Service (SES) or Senior Management Service (SMS).

^[2]See CEO 11-24 for a discussion of the restrictions under Sections 112.3185(3) and 112.3185(4), Florida Statutes, which operate independent of the restriction in Section 112.313(9)(a)4, Florida Statutes. Also discussed in CEO 11-24 is Section 112.3185(5), Florida Statutes, which would apply if you were to be paid for employment or contractual services by FDOT (directly or through a closely held company of yours) during the first year after your departure in retirement from FDOT and which states that such payment shall not exceed your annual salary received on the date of cessation of your previous responsibilities.

^[3]Also, see Sections 112.312(2), 112.312(5), and 1.01(8), Florida Statutes, respectively, for definitions of "agency," "business entity," and "political subdivision."

^[4]Section 287.012(8), Florida Statutes, provides in relevant part:

Contractual services means the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors . . . .

^[5]Section 331.360, Florida Statutes, provides in relevant part:

(1) It shall be the duty, function, and responsibility of the Department of Transportation to promote the further development and improvement of aerospace transportation facilities; to address intermodal requirements and impacts of the launch ranges, spaceports, and other space transportation facilities; to assist in the development of joint-use facilities and technology that support aviation and aerospace operations; to coordinate and cooperate in the development of spaceport infrastructure and related transportation facilities contained in the Strategic Intermodal System Plan; to encourage, where appropriate, the cooperation and integration of airports and spaceports in order to meet transportation-related needs; and to facilitate and promote cooperative efforts between federal and state government entities to improve space transportation capacity and efficiency . . . .

(2) Notwithstanding any other provision of law, the Department of Transportation may enter into a joint participation agreement with, or otherwise assist, Space Florida as necessary to effectuate the provisions of this chapter and may allocate funds for such purposes in its 5-year work program . . . .

^[6]We do not address postemployment issues as to the other contract regarding a task work order, for which you have responsibility at FDOT, because you state that this contract is scheduled to expire in July 2017 prior to your retirement in 2018.