Section 112.313(9)(a)4, Florida Statutes, prohibits certain categories of state officers and employees from personally representing clients before their former agencies for a period of two years. However, because of the nature of this particular OPS employment, the prohibition would not apply to a former OPS Senior Attorney who was employed by the Department of Environmental Protection because the OPS employee did not have the "power normally conferred" upon employees in authorized positions.
Are you, an attorney who formerly was employed by the Department of Environmental Protection in an OPS position, subject to the post-employment provision in Section 112.313(9)(a)4, Florida Statutes?
Under the circumstances presented, your question is answered in the negative.
From your letter of inquiry and other information you provided to our staff, as well as information we obtained from the Department of Environmental Protection, we are advised that you worked as a Senior Attorney in an OPS (other personal service) position with the Department from December 2002 until September 2004. When you were initially hired by the Department, you were advised that your continued employment depended on the availability of funding and that you could be terminated at any time, without explanation or recourse. You also were advised that you were not eligible for benefits such as annual leave, sick leave, paid holidays, or retirement and insurance. The majority of your work for the Department involved the litigation between Florida, Alabama, and Georgia over water resources in the Apalachicola-Chattahoochee-Flint River Basin. Whether your employment subjected you to any post-employment restrictions was not addressed when you were hired, you advise; nor were you aware of any reason why they would. Having recently left the Department for a private law firm, you now question whether Section 112.313(9)(a)4 restricts your ability to represent clients before the Department.
Section 112.313(9)(a), Florida Statutes, provides in relevant part:
POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.—
(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees. As used in this paragraph:
a. "Employee" means:
(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.
. . .
(VI) Any person having the power normally conferred upon the positions referenced in this sub-subparagraph.
. . .
c. "State agency" means an entity of the legislative, executive, or judicial branch of state government over which the Legislature exercises plenary budgetary and statutory control.
4. 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.
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.
. . . .
The issue is whether you, as an OPS employee, had the "power normally conferred" upon persons in "covered" positions or, in this case, the Selected Exempt Service. If you did, you would be subject to the prohibition against representing persons for compensation before the entire Department of Environmental Protection until September 2006.
You indicate that your position at the Department was that of "Senior Attorney," and "Senior Attorney" is one of many positions classified as Selected Exempt Service. The Selected Exempt Service was created by Section 110.602, Florida Statutes, as a separate system of personnel administration for select exempt positions--positions which are exempt from the Career Service System. However, rules promulgated by the Department of Management Services distinguish between appointments to established positions in the Career Service, Selected Exempt Service, or Senior Management Service and OPS employment. Rule 60L-33.005(1), Florida Administrative Code, provides:
Other personal services ("OPS") employment is a temporary employer/employee relationship used solely for the completion of short term or intermittent tasks. OPS employees do not fill established positions. OPS employees shall not be assigned the duties of any vacant authorized position.
The Department confirmed that you were not in an established position; there was no position number or position description because these are only required for established positions that have been approved by the Department of Management Services, and that you were not assigned the duties of a vacant authorized position. Thus, your employment was categorized as “temporary” within the meaning of Section 110.131, Florida Statutes.
Because of the nature of OPS employment—that it is time-limited for the completion of short-term or intermittent tasks, and that agencies cannot use it to fill established positions or assign to it the duties of any vacant, authorized position, it is our view that persons in OPS positions cannot possess the "power normally conferred" upon persons in established Selected Exempt Service positions. This view is also consistent with the intent of the post-employment restriction, articulated by Governor Askew in an address to the Legislature and quoted by the court in Williams v. Smith, 360 So.2d 417 (Fla. 1978):
I strongly urge the Legislature to adopt comprehensive legislation to ensure that public officers and high ranking state employees do not use their public service careers, and contacts developed in that capacity, to later enrich themselves at the expense of the public.
OPS employees, who are hired on a temporary basis and cannot even perform the duties of a vacant authorized position, are less likely to have public service careers or networks of contacts among agency decisionmakers. For these reasons, we conclude that the nature of your OPS employment precluded you from having the "power normally conferred" upon an employee in a covered position. However, as we did in CEO 02-1, we strongly encourage the Legislature to revisit the language in Section 112.313(9)(a)2.a.(VI), Florida Statutes, and determine whether it meant to exclude OPS employees who serve in temporary positions when it employed the phrase "power normally conferred upon" because we are concerned that the current practice of using OPS employees in positions that were traditionally in the Selected Exempt Service creates a loophole not envisioned by the Legislature when it enacted the post-employment provision for certain employees.
We also note that the Florida Bar's Rules of Professional Conduct address successive government and private employment in Rule 4-1.11. These rules prohibit you from representing a private client in connection with a matter in which you participated personally and substantially as an employee of the Department.
Accordingly, Section 112.313(9)(a)4, Florida Statutes, does not apply to you as a former OPS employee of the Department of Environmental Protection.
ORDERED by the State of Florida Commission on Ethics meeting in public session on January 27, 2005 and RENDERED this 1st day of February, 2005.
Joel K. Gustafson, Chairman