CEO 04-16 -- September 8, 2004

POSTEMPLOYMENT RESTRICTIONS

FDOT FORMER SES EMPLOYEE ENGAGING IN REPRESENTATION BEFORE FDOT WITHIN TWO YEARS OF LEAVING FDOT


To: Name withheld at person's request

SUMMARY:

A former Selected Exempt Service (SES) employee of the Florida Department of Transportation (FDOT) is prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally representing another person or entity for compensation before FDOT for two years following vacation of his FDOT position, inasmuch as the whole of FDOT is his "agency." CEOs 82-83, 91-49, 02-1, 02-12, and 03-10 are referenced.[1]

QUESTION:


Are you, a former Selected Exempt Service (SES) employee of the Florida Department of Transportation (FDOT), prohibited by Section 112.313(9)(a)4, Florida Statutes, from personally engaging in compensated representation before the whole of FDOT for a period of two years following vacation of your FDOT position?


Your question is answered in the affirmative.


By your letter of inquiry and additional correspondence between you and our staff, we are advised that you ended employment with the Florida Department of Transportation (FDOT) on June 4, 2004,[2] to accept employment with a consulting engineering firm. In addition, you advise that the FDOT position you vacated was two levels below the Secretary[3] of FDOTís District 1. In your former position, you advise, you "administratively worked" for District 1, but you also were responsible for oversight of the materials program in District 7.[4] Further, you advise that you had no "department head" responsibilities in any of the other FDOT Districts, that your FDOT job responsibilities included oversight of less than one percent of FDOT's total staff (all of whom worked within Districts 1 and 7), and that you never held a "Statewide" or central office position within FDOT.[5]


Thus, you inquire as to whether your personally contacting[6] FDOT for the engineering firm (your employer) within two years of ending your FDOT employment would be prohibited by Section 112.313(9)(a)4.[7] More particularly, you desire to know what is your "agency" for purposes of the two-year prohibition, whether it is the whole of FDOT or just part(s) of FDOT.


We find that your "agency" is the whole of FDOT and thus find that you are prohibited from contacting FDOT personnel in your private work capacity (and prohibited from otherwise "representing" the engineering firm or another before FDOT)[8] for a period of two years from ending your FDOT employment.[9] Our finding in regard to you is in accord with our determination (in CEO 02-12, Question VI) that the whole of the Agency for Health Care Administration (AHCA) was the "agency" of a former AHCA attorney for purposes of the prohibition because it was the agency with which she was employed.[10]


Your question is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on September 2, 2004 and RENDERED this 7th day of September, 2004.





______________________________

John A. Grant, Jr., Vice Chair




[1] Prior opinions of the Commission on Ethics are viewable on its website: www.ethics.state.fl.us.

[2] You relate that you were hired to a Career Service position in May 1992, that you were appointed to a Selected Exempt Service (SES) "department head" position in June 1998, and that you remained in the SES position until June 4, 2004.

[3] You relate that the Secretary is the top administrator in the District.

[4] You relate that you never had a personal office in District 7, that you were not part of District 7 management meetings or District 7 department head meetings, that District 7 management did not have any input into the staffing of your department, that you never met many of the department heads in District 7, and that you never received any additional compensation for your role in District 7.

[5] You advise that FDOT is composed of seven distinct geographical Districts, the Statewide turnpike enterprise, and a central office; and that each District is independent regarding consultant selection and management, personnel, purchasing, and budget matters.

[6]The contact would include contacting FDOT personnel to: gather information about FDOT's future privatized work; gather information on planned consulting funding levels; discuss your firm's staffing and capabilities; discuss your firm's business plan; discuss FDOT's business plan and future direction; discuss FDOT's expectations for firms such as your firm; discuss future FDOT projects on which your firm would be a sub consultant to design consultants; and get clarification or additional detail about information posted on FDOT's website.

[7] Statutes provide:

'Employee' means:


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. [Section 112.313(9)(a)2.a.(I), Florida Statutes.]


No agency employee shall 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.]


Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct. [Section 112.313(9)(a)5, 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.]


'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.]


[8] We find that all of the exemplified anticipated contact of FDOT by you would constitute "representation." Only extremely limited "ministerial" matters akin to the mere filing of articles of incorporation do not amount to "representation" under Section 112.313(9)(a)4. See CEO 91-49, Question 4, and CEO 82-83.

[9] The circumstances of your move from Career Service to Selected Exempt Service do not indicate the applicability of any "Service First-based en masse transfer/grandfathering" which would take you out from under the prohibition. See CEO 02-1.

[10] CEO 03-10 (in which the prohibition was found not to apply to a former director of legislative affairs for the Department of Management Services) is distinguishable from our instant finding and from CEO 02-12. In CEO 03-10, the so-called "dotted line" agencies before which the former employee would engage in "representation" were administratively assigned to DMS (to avoid the Florida Constitutionís limit on the number of executive departments), operated independently of DMS, and were not subject to DMS's jurisdiction or control, a situation not analogous to that of FDOT.