POST-OFFICE HOLDING RESTRICTIONS
FORMER MEMBER OF A LOCAL HOUSING AUTHORITY ACCEPTING
DEVELOPER'S OFFER OF EMPLOYMENT
To: Mr. Mark Herron (Tallahassee)
A former member of a local housing authority is not prohibited by the post office-holding restrictions of the Code of Ethics for Public Officers and Employees from accepting an offer of employment extended by a contractor who successfully lobbied her agency to become the master developer of a major housing development project.
Would a former member of a local housing authority be prohibited by the Code of Ethics for Public Officers and Employees from accepting an offer of employment from a developer that the local housing authority selected as the master developer for an affordable housing development?
Under the facts presented, your question is answered in the negative.
You advise that you are seeking this opinion on behalf of Ms. Dawn Guzzetta, who is a former member of the Delray Beach Housing Authority.1 Through your request for advisory opinion and your subsequent correspondence you advise the following:
Your client was a member of the Delray Beach Housing Authority (herein "DBHA") which was created in accordance with Section 421.04, Florida Statutes. In February 2007, the DBHA voted to designate a development group as the master developer to develop a $200 million, 50-acre project mixed use, mixed income community. As a member of the DBHA, she voted to approve the project and the selection of the master developer. The vote was unanimous.
Subsequent to the vote, the former member was approached by representatives of the development group about whether she would consider accepting a position with them. You advise that she was first approached by the development group in May. Her title would be Director of Public Relations and Governmental Affairs. You indicate that she resigned DBHA in May and will start with the development group in September 2007, if there is no prohibited conflict. The former member's duties and responsibilities would include governmental affairs representation (before various entities at the local, state and federal level), public relations, and community outreach for sales of workforce housing units in the project.
You advise that immediately upon being offered the position, the former member resigned from the Board. You advise that she is investigating whether there are any other applicable post office-holding restrictions, including local and federal prohibitions.
Against this factual backdrop, we are asked whether the subject former member would be prohibited by the Code of Ethics for Public Officers and Employees from accepting the offer of employment with the development group. Solely on the facts presented herein, we conclude that the Code of Ethics would not prohibit her acceptance of the offer. 2 The only applicable post office-holding prohibition is Section 112.313(13), Florida Statutes,3 which provides:
COUNTY AND MUNICIPAL ORDINANCES AND SPECIAL DISTRICT AND SCHOOL DISTRICT RESOLUTIONS REGULATING FORMER OFFICERS OR EMPLOYEES.-”The governing body of any county or municipality may adopt an ordinance and the governing body of any special district or school district may adopt a resolution providing that an appointed county, municipal, special district, or school district officer or a county, municipal, special district, or school district employee may not personally represent another person or entity for compensation before the government body or agency of which the individual was an officer or employee for a period of 2 years following vacation of office or termination of employment, except for the purposes of collective bargaining. Nothing in this section may be construed to prohibit such ordinance or resolution.
Section 112.313(13) contains no post office-holding restrictions for appointed special district officers. Rather, it permits the respective governing bodies to enact, by ordinance or resolution, employment restrictions for a period of two years. In the absence of an ordinance or resolution, there are no post office-holding employment restrictions applicable to appointed officers in those units of government.
We are not aware whether the City or Housing Authority has adopted an ordinance or resolution applicable to former members of the Housing Authority. Even if there were one, we would not have jurisdiction to analyze or opine about its applicability.4 Nor do we have jurisdiction over other State or federal statutes outside of the Code of Ethics that might address this situation.
Accordingly, we find that, under the circumstances you have represented, the Code of Ethics for Public Officers and Employees does not prohibit the subject former Housing Authority member from accepting the offer of employment by the development group. As with all of our opinions, this opinion is limited to the facts as presented by the public official and is binding unless material facts have been omitted or misstated in the opinion request, pursuant to Section 112.322(3), Florida Statutes.
ORDEREDby the State of Florida Commission on Ethics meeting in public session on July 27, 2007 and RENDERED this 1st day of August, 2007.
Albert P. Massey, III, Chairman
The original "Request for Advisory Opinion" referred to Ms. Guzzetta as a member. However, because your response to our request for additional information indicates that she has resigned, she will be referred to as a former office-holder.
The request for formal opinion also refers to: Section 112.313(7)(a) prohibiting conflicting employment or contractual relationships; Section 112.313(2) prohibiting solicitation or acceptance of gifts; Section 112.313(3) prohibiting doing business with one's own agency; Section 112.313(4) prohibiting unauthorized compensation; Section 112.313(6) prohibiting misuse of public position. Those Sections are not relevant to whether the former member is precluded from engaging in employment with the developer. Therefore, those remaining provisions are left unaddressed. Additionally, such factual/evidential nuances are not susceptible to determination in the context of an advisory opinion. Therefore, this opinion is not controlling in the context of ethics complaints, if any, which might be brought regarding factually similar scenarios. See CEOs 02-13 and 95-16.
The remainder of the post office-holding provisions do not apply because Sections 112.313(9), 112.3185(3), and 112.3185(4), Florida Statutes, apply only to state public officers and employees. As such, they are inapplicable to the former member because she served on a local housing agency pursuant to Section 421.04, Florida Statutes. Additionally, Section 112.313(14) does not apply because the former member, pursuant to Section 421.05, Florida Statutes, was an appointed public officer.
It is important to note that, were there an applicable ordinance or resolution, a violation of such a prohibition would not constitute a violation of the Code of Ethics.