POST-EMPLOYMENT RESTRICTIONS

FORMER JACKSONVILLE TRANSPORTATION AUTHORITY EMPLOYEE

To: Name withheld at the person's request (Jacksonville Transportation Authority)

SUMMARY:

The post-employment restrictions provided in Section 112.313(9)(a)4., Florida Statutes, and Sections 112.3185(3) and (4), Florida Statutes, do not apply to former employees of the Jacksonville Transportation Authority. Referenced are CEO 01-6, CEO 02-17, CEO 03-8, CEO 05-9, CEO 07-16, CEO 08-17, and CEO 08-19.

QUESTION 1:

Does the post-public-employment restriction of Section 112.313(9)(a)4., Florida Statutes, apply to a former employee of the Jacksonville Transportation Authority?

This question is answered in the negative.

In your letter of inquiry, you state that you were employed with the Jacksonville Transportation Authority (JTA) as the Assistant Vice-President — Construction and Engineering, for over eleven (11) years until December 12, 2021. You state that, as a JTA employee, your responsibilities included directing, approving, overseeing, and participating in construction, design management, and invoice approvals for JTA's capital projects. You state that, after leaving your position with the JTA, you joined WSP USA, Inc. (WSP) — a private firm that provides engineering and professional services.

In your letter, you state that as a vendor of the JTA, WSP currently has an active contract¹ with the JTA, and that as a JTA employee, you directly participated in the management of this contract. You further state that WSP completed a Commuter Rail Feasibility study for the JTA in 2017, and that you, as a JTA employee, were involved in the oversight of this study and were one of the several JTA invoice approvers. You further state that WSP has additional contracts for transit-oriented development services with which you were not involved during your time at the JTA.

Based on these facts, you inquire as to the applicability of the post-employment restrictions within the Code of Ethics for Public Officers and Employees (Code of Ethics) and whether you may represent your employer, WSP, before your former agency, the JTA. Section 112.313(9)(a)4., Florida Statutes, applies to an agency employee, and in relevant part, states:

[a]n 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., Florida Statutes, places a two-year prohibition on a former agency employee representing persons or entities before his or her former agency. Section 112.313(9)(a)2.a., Florida Statutes, defines an "employee" subject to the aforementioned two-year prohibition, and provides:

(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.

(II) The Auditor General, the director of the Office of Program Policy Analysis and Government Accountability, the Sergeant at Arms and Secretary of the Senate, and the Sergeant at Arms and Clerk of the House of Representatives.

(III) The executive director and deputy executive director of the Commission on Ethics.

(IV) An executive director, staff director, or deputy staff director of each joint committee, standing committee, or select committee of the Legislature; an executive director, staff director, executive assistant, analyst, or attorney of the Office of the President of the Senate, the Office of the Speaker of the House of Representatives, the Senate Majority Party Office, Senate Minority Party Office, House Majority Party Office, or House Minority Party Office; or any person, hired on a contractual basis, having the power normally conferred upon such persons, by whatever title.

(V) The Chancellor and Vice Chancellors of the State University System; the general counsel to the Board of Governors of the State University System; and the president, provost, vice presidents, and deans of each state university. (VI) Any person, including an other-personal-services employee, having the power normally conferred upon the positions referenced in this sub-subparagraph. [emphasis added].

Pursuant to this definition, it must first be determined whether you, as a result of your employment with the JTA, were an "employee" within an executive or legislative branch agency as stated in Section 112.313(9)(a)2.a.(I), Florida Statutes.

Chapter 349, Florida Statutes, established and defines your former agency, the JTA. Section 349.03(1), Florida Statutes, provides:

There is hereby created and established a body politic and corporate and an agency of the state to be known as the Jacksonville Expressway Authority, redesignated as the Jacksonville Transportation Authority, and hereinafter referred to as the “authority.” [emphasis added].

Further, Section 349.02(1)(a), Florida Statutes, defines "Authority," in relation to the JTA, to mean "the body politic and corporate, an agency of the state created by [] chapter [349]." Section 349.02(1)(i), Florida Statutes, defines "agency of the state" to mean and include "the state and any department of the state, the authority, or any corporation, agency, or instrumentality heretofore or hereafter created, designated, or established by the state." The term "body politic" has been defined in Section 1.01(8), Florida Statutes, and it provides:

The words 'public body,' 'body politic,' or 'political subdivision' include counties, cities, towns, villages, special tax school districts, special road and bridge districts, bridge districts, and all other districts in this state.

Based upon this statutory scheme, we conclude that the JTA is an independent state agency. Chapter 349, Florida Statutes, delineates the JTA as an agency of the state, but also specifies that the JTA is a distinct body politic. For this reason, we find that the JTA, as an independent state agency, is not a part of either the executive or the legislative branch of state government.² Because the JTA is not part of the executive or legislative branch, we find you do not meet the definition of an "employee" as set forth in Section 112.313(9)(a)2.a.(I), Florida Statutes, and, therefore, are not subject to the two-year revolving door prohibition found in Section 112.313(9)(a)4., Florida Statutes.

Question 1 is answered accordingly.

QUESTION 2:

Do the post-public-employment restrictions in Section 112.3185(3) and (4), Florida Statutes, apply to a former employee of the Jacksonville Transportation Authority?

This question is answered in the negative.

The post-employment restrictions provided in Section 112.3185(3), Florida Statutes, and Section 112.3185(4), Florida Statutes, respectively, state that:

(3) 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.

(4) 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(3), Florida Statutes, prohibits a former agency employee from going to work for a private business entity in connection with a contract where the former agency employee was personally and substantially involved in the procurement of the contract. See CEO 02-17, CEO 03-8, CEO 05-9, and CEO 08-17. Section 112.3185(4), Florida Statutes, further prohibits a former agency employee, for two years after the date of their departure from their former agency, from going to work for any business entity in connection with a contract for contractual services that was within their responsibility or that of their agency subordinates, while employed at the former agency. See CEO 07-16 and CEO 01-6.

The post-employment restrictions in Sections 112.3185(3) and (4), Florida Statutes, only apply to "agency" employees. Section 112.3185(1)(b), Florida Statutes, defines the term "agency" and states that:

"Agency" means any state officer, department, board, commission, or council of the executive or judicial branch of state government and includes the Public Service Commission. [emphasis added].

As noted above in Question 1, the JTA is an independent agency and is not part of any of the branches of state government. Because it is not a part of the executive or judicial branch, you, as a former JTA employee, do not meet the definition of an agency employee. Therefore, you are not subject to the post-employment restrictions of Sections 112.3185(3) and (4), Florida Statutes.

Question 2 is answered accordingly.³

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 22, 2022, and RENDERED this 27th day of April, 2022.

____________________________________

John Grant, Chair

^[1]Your letter of inquiry refers to this contract as the Collins Road project. You relate that this project is designed to improve access to and from I-295 and Collins Road in Jacksonville.