CEO 09-5 March 11, 2009

POSTEMPLOYMENT RESTRICTIONS

FORMER FDOT EMPLOYEE ENGAGED IN VARIOUS
ACTIVITIES WITHIN TWO YEARS OF LEAVING FDOT

To: Dennis Dwayne Kile, P.E. (Clearwater)

SUMMARY:

Advice is provided to a former SES employee of the Department of Transportation concerning the application of the two-year revolving-door restriction contained in Section 112.313(9)(a)4, Florida Statutes, in a variety of circumstances. CEO 08-18, CEO 06-1, CEO 05-16, CEO 04-16, CEO 00-20, CEO 00-6, and CEO 94-20 are referenced.1


QUESTION:

What is the application to you (a former Selected Exempt Service employee of the Department of Transportation), under the situations treated herein, of the two-year postemployment "representation" restriction codified in Section 112.313(9)(a)4, Florida Statutes?


Your question is answered as set forth below.


By your letter of inquiry, an earlier letter from you, and a letter from our staff to you, we are advised that you were employed by the Florida Department of Transportation (FDOT) from October 3, 1997 through May 8, 2008,2 holding the position of FDOT District Seven3 Design Engineer, a position within the Selected Exempt Service (SES) as defined in Section 110.602, Florida Statutes.4 Further, you advise that your FDOT responsibilities included oversight of a 45-person staff, oversight of all design projects, setting District guidance through memoranda/documents regarding design criteria, representing the District in meetings with government officials, and having final authority for design parameters on consultant projects.


In addition, you advise that you have obtained employment with a consultant which is doing business with District Seven, occupying a position responsible for operations, securing new contracts, delivering contract performance to clients, and relationship development and maintenance as to clients. Further, you advise that you are responsible for effectively communicating with the consultant's staff, overseeing staff development efforts, and signing and negotiating contracts. Also, you advise that you lead contract pursuits, development of proposals and presentations, and strategic teaming, and that you schedule periodic meetings with the consultant's key client (presumably, District Seven).

Thus, you seek our guidance as to:


A. Whether the restriction of Section 112.313(9)(a)4, Florida Statutes, encompasses only representation occurring prior to the entry into a contract with the District (is the prohibited representation limited to representation for the purpose of marketing/seeking District projects or other District work)?


B. Whether the restriction would prohibit your collecting information from the District on the performance of your employer's staff regarding District contracts obtained by your employer before you left FDOT employment?


C. Whether the restriction would prohibit your contacting or interacting with the District for your employer for the purpose of performing work on contracts obtained by your employer after you left FDOT employment?


D. Whether the restriction prohibits your signing supplemental agreements (related to contracts between your employer and the District entered into without your representation for your employer) between your employer and the District, or prohibits your participation in negotiations concerning proposed supplemental agreements?


E. Whether the restriction would prohibit your participating in, or merely attending, general District informational meetings related to upcoming work program projects?


F. Whether the restriction would prohibit your signing letters of interest or signing contracts between your employer and the District?


G. Whether the restriction applies to your representation regarding FDOT's central office, regarding FDOT Districts other than District Seven, and regarding the Florida Turnpike Enterprise?


Section 112.313(9)(a)4, Florida Statutes, provides:


An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, 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.


For purposes of the statute's two-year restriction, a former "employee" includes a person who was employed in the Selected Exempt Service. Section 112.313(9)(a)2.a.(I), Florida Statutes. And for purposes of the restriction, "represent" or "representation" is defined, in Section 112.312(22), Florida Statutes, as follows:


'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.


As a former SES employee, Section 112.313(9)(a)4 restricts (prohibits) your personal,5 compensated "representation" of your employer (or of any other person or entity) before your former public agency for a period of two years following your vacation of public position.

More particularly, regarding item "A," above, we find that the restriction encompasses conduct in behalf of your employer, or another, which would come within the definition of "represent" codified at Section 112.312(22), occurring prior to your employer's entry into a District contract (e.g., representation by you toward District Seven or its personnel in marketing or seeking District projects or other District work for your employer). However, we also find that the restriction encompasses conduct of yours occurring after the entry into a contract, as more specifically discussed below.


Regarding item "B," we find that your personally contacting District personnel, or otherwise personally doing things vis--vis the District which mechanically or by rote come within the definition of "represent," would not be prohibited, provided that your contact or conduct, in collecting information from the District on the performance of your employer's staff regarding District contracts, or otherwise, is for the purpose of fulfilling your firm's obligations under the contracts and is not for the purpose of getting the District to do something for your employer or another. In accord with our finding are CEO 00-6 and CEO 05-16.


Treating item "C," which essentially poses the same question as item "B," we find that your contact with the District which is limited to performing a contract (contact not for the purpose of getting the District to do something) would not be prohibited, regardless of whether the contract was obtained by your employer before or after you left FDOT. While the facts of CEO 00-6 and CEO 05-16 indicate that the contracts present there, which would merely be performed or delivered through interaction of the former public employee with his or her former agency, were entered into before the former public employee left his or her public position, the chronology of contract entry was not the issue in those decisions; rather, as here, the issue was mere performance and delivery versus trying to get the former agency to enter into a contract or otherwise do something for one's employer or another.


Regarding item "D," we find that you would be prohibited from signing supplemental agreements between your employer and the District, and we find that you would be prohibited from participating in negotiations with the District concerning proposed supplemental agreements, even where the agreements or proposed agreements relate to contracts between your employer and the District (initial or original contracts) entered into without your representation for your employer. We find that your signing of a contract would constitute the writing of a letter, the filing of a document, and/or a communication with officers or employees of the District, within the meaning of "represent," and we find that your personal participation in negotiations concerning proposed supplemental agreements between your employer and the District would constitute actual attendance on behalf of your client (employer) in a District proceeding and/or a communication with officers or employees of the District, within the meaning of "represent."


Concerning item "E," we find that you would be prohibited during the two-year period from attending or participating in general District informational meetings related to upcoming work program projects. Such conduct by you would fit within the definition of "representation" and would not merely be for the delivery or performance of a contract.


As to item "F," we find that you would be prohibited from signing letters of interest, or signing contracts, between your employer and the District, under the reasoning of item "D" above.


Lastly, as to item "G," we find that the advice provided above applies to you regarding the whole of FDOT, including but not limited to all of its Districts and its central office; its application is not limited to your conduct regarding District Seven. In other words, in accord with our decision in a previous matter concerning a former FDOT employee (CEO 04-16), we find that the agency with which you were employed for purposes of Section 112.313(9)(a)4 is the whole of FDOT.6 However, we do not find that the two-year restriction applies to you regarding the Florida Turnpike Enterprise; see CEO 08-18, in which we found, in considering an inquiry concerning Section 112.313(9)(a)4, that the Florida Turnpike Enterprise and FDOT are separate agencies.


ORDERED by the State of Florida Commission on Ethics meeting in public session on March 6, 2009 and RENDERED this 11th day of March, 2009.


____________________________________

Cheryl Forchilli, Chair


[1]Prior opinions of the Commission on Ethics can be accessed via its website: www.ethics.state.fl.us

[2]Your employment history, as provided, does not indicate applicability of a "grandfather clause" to you under Section 112.313(9)(a)6, Florida Statutes, inasmuch as such relief from the restriction of Section 112.313(9)(a)4, Florida Statutes, is anchored, in part, in one's public employment with an agency beginning on or prior to July 1, 1989. CEO 94-20.

[3]You advise that District Seven includes Pinellas, Hillsborough, Pasco, Hernando, and Citrus Counties.

[4]Your inquiry refers to your former FDOT position as "traditional select exempt." We see no indication in your inquiry, in Section 110.602, Florida Statutes, or in Section 110.205, Florida Statutes (which addresses exemptions from Career Service and which is referenced in Section 110.602)that your former position was not a Selected Exempt Service position within the meaning of Section 112.313(9)(a)4, Florida Statutes.

[5]The statute does not prohibit representation by employees or agents of your employer who are not themselves former public employees subject to the restriction. See CEO 00-20.

[6]Consequently, wherever this opinion refers to "District Seven" or "the District" in providing guidance to you, you should read it to mean that you are restricted, or not restricted, as applicable, regarding the whole of FDOT. Also, note that conduct of yours coming within the definition of "represent," vis--vis FDOT, can violate the prohibition even if FDOT is not the decisionmaker (is not the locus of authority to take final action) on a matter. CEO 06-1.