POST-EMPLOYMENT RESTRICTIONS

FORMER FDOT CONSTRUCTION MANAGER EMPLOYED BY FDOT CONTRACTOR

Name withheld at person's request (Bartow)

SUMMARY:

A former employee of the Florida Department of Transportation (FDOT) would not be prohibited under Section 112.3185(3) or (4), Florida Statutes, from being employed by an FDOT contractor in connection with a contract for contractual services which was within his responsibilities or that of his subordinates while at FDOT, through application of Section 112.316, Florida Statutes, to the particular facts presented. CEO 83-8, CEO 95-19, CEO 01-6, CEO 07-16, and CEO 12-20 are referenced.¹

QUESTION:

Would Section 112.3185, Florida Statutes, prohibit your holding employment or a contractual relationship, after the vacation of your public employment with FDOT, with a company in connection with a contract for which you were not personally and substantially involved in procurement but which was within your responsibilities or that of your FDOT subordinates in the weeks preceding your departure from public employment?

Your question is answered in the negative, under the circumstances presented.

In your letter of inquiry and additional information provided to our staff, you relate that from August 2003 until October 4, 2018, you were employed by the FDOT in District 1. You indicate that prior to your departure from your public position you were a Construction Manager for the Bartow Operations Center and that in this capacity you supervised four FDOT employees. You state that on October 4, 2018, you left public employment in favor of private employment as a Construction Project Manager/Administrator with Eisman & Russo, Inc. (E&R). You explain that E&R is a construction and engineering firm that provides consultant construction engineering and inspection services to both private and public clients throughout the United States.

You relate that during the period preceding your leaving public employment, FDOT began the process of selecting a firm for a professional services contract to provide consultant engineering and inspection services (CEI) directly related to a road-widening project in District 1. You state that you did not have any public capacity involvement or responsibilities of any kind regarding the FDOT contract procurement process for this contract. You relate that pursuant to its contract procurement process, FDOT selected E&R as the consultant for the provision of oversight and management of the State Road 542 construction project. You indicate that on July 19, 2018, FDOT executed a consultant contract with E&R for the provision of CEI services pertaining to the project (CEI contract).²

You state that on June 25, 2018, the FDOT employee tasked with facilitating the procurement of the consultant under the CEI contract left FDOT employment. In light of her departure, you relate that on July 11, 2018, FDOT transferred contract oversight authority to one of the four employees you supervised. You relate that your involvement with respect to the CEI contract was limited to supervising the FDOT employee overseeing the CEI contract (after July 11, 2018), attending three meetings involving the project, and signing one Action Request (AR) on behalf of FDOT.³

You state that your private employment with E&R began on October 8, 2018. You relate that your employment with E&R as a Construction Project Manager/Administrator will require you to perform constructability plan reviews for construction projects throughout Florida. Moreover, you will be required to perform Quality Assurance reviews, conduct marketing initiatives, submit technical proposals for E&R clients, and be involved with projects for regional turnpike and expressway authorities, airports, counties, municipalities, and FDOT districts other than District 1 (for a period of two years). You state that a small portion of your job responsibilities with E&R will require that you act as a Utility Coordinator on the CEI contract involving the FDOT State Road 542 project. In light of the foregoing, you inquire about the post-public-employment implications of Section 112.3185(3) and 112.3185(4), Florida Statutes, to the particular facts of your inquiry.

Section 112.3185(3), Florida Statutes, provides:

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) prohibits you from going to work for a company (contractor, subcontractor, or other) in connection with a contract where you were personally and substantially involved in procuring the contract while you were at FDOT. The Commission on Ethics has opined that the prohibition of Section 112.3185(3) is directed to those persons who participated in the procurement or development of a contract through "decision, approval, disapproval, recommendation, rendering of advice or investigation." See CEO 83-8. You indicate that during your employment with FDOT you were not involved in any capacity in the development or procurement of the CEI contract formed between E&R and FDOT. Therefore, in light of your work history, we find that you are not subject to the restriction of Section 112.3185(3).

Section 112.3185(4), Florida Statutes, provides:

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. 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), Florida Statutes, prohibits you, for two years from the date you left FDOT, from working for a company in connection with a contract for contractual services⁴ which was within your FDOT responsibility or that of your FDOT subordinates. The Commission on Ethics has found that the term "within his or her responsibility" in Section 112.3185(4) means monitoring, managing, or having ultimate responsibility (e.g., through subordinates) for a contract for contractual services. See CEO 01-6. In the instant matter, you state that you were not involved in any capacity in the FDOT contract procurement process regarding the selection of a firm associated with the CEI contract. Rather, other FDOT personnel oversaw the selection of E&R as a services provider pursuant to the CEI contract. However, you further relate that during this period the FDOT employee overseeing the CEI contract procurement process resigned from public employment. Thereafter, the responsibility of overseeing the existing CEI contract was transferred to a subordinate employee that you managed. The transfer of responsibilities thus required you, as a supervisory employee, to engage in three meetings involving the existing CEI contract with E&R and to sign an AR on behalf of FDOT regarding the CEI contract. Therefore, the CEI contract was "within your responsibility" while you were employed by FDOT. See CEO 07-16 and 12-20. Thus, Section 112.3185(4), if applied in isolation, would restrict your post-FDOT employment.

However, in construing the post-public-employment provisions of the Code of Ethics the Commission has found that certain factual circumstances necessitate the application of Section 112.316, Florida Statutes, to temper the mechanistic application of Section 112.3185(4) so as to avoid an overly onerous application of the law. See CEO 95-19, CEO 12-20, and CEO 07-16. Section 112.316, Florida Statutes, provides:

Construction.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

For example, in CEO 95-19 the Commission applied Section 112.316 to ameliorate the literal application of Section 112.3185(4) and find that a former Agency for Health Care Administration (AHCA) employee was not prohibited from being employed by a prepaid Medicaid health plan provider contracting with AHCA. In that opinion we observed that "Section 112.3185(4) was designed to prevent State employees from using their public positions to conceive of a need for services, develop a contract to obtain those services, and then to 'switch sides' and go to work for the entity that was awarded the contract that they conceived and developed while public employees." In the instant matter, the FDOT contract with E&R was negotiated, entered into, and signed by persons other than you. Moreover, your involvement with respect to the CEI contract was limited to supervising the FDOT employee overseeing the contract (after July 11, 2018), attending three meetings, and signing a single AR associated with the project. Further, your oversight of the FDOT employee managing the CEI contract was limited to a matter of weeks prior to your departure from public employment on October 4, 2018. In light of the foregoing facts, we believe it is appropriate to apply Section 112.316 to negate the restriction that would arise in your situation via the literal language of Section 112.3185(4).

Under the specific circumstances of your inquiry, we find that Section 112.3185(4), Florida Statutes, does not prohibit you from working for E&R on the CEI contract during the two-years following your vacation from your FDOT position.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 7, 2018, and RENDERED this 12th day of December, 2018.

____________________________________

Guy W. Norris, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]During this period on July 24, 2018, FDOT also executed a construction contract with E&R regarding the State Road 524 project. Further, an FDOT Notice to Proceed was issued to E&R on August 21, 2018, with a mandatory start date of October 29, 2018.

^[3]FDOT ARs are used to document correspondence between FDOT and agency consultants and are enumerated for auditing purposes. Each AR is signed by the respective consultant associated with the project as well as the FDOT Construction Project Manager. Action Request Number 1, involved herein, was signed by the Requestor as the Bartow Construction Manager and required that E&R, as the consultant, use the identical personnel on the project as those persons identified and approved during the contract procurement process.

^[4]It appears that E&R's contract with FDOT is for "contractual services," as that term is defined in Section 287.012(8), Florida Statutes.