CEO 09-22 December 9, 2009

POST-EMPLOYMENT RESTRICTIONS

FORMER PSC EMPLOYEE CONSULTING WITH
TELECOMMUNICATIONS COMPANIES

To: Name withheld at person's request (Tallahassee)

SUMMARY:

A former PSC employee would not be prohibited by Section 350.0605(2), Florida Statutes, from advising or consulting with telecommunications companies on matters related to a docket she worked on as a PSC employee. Although she is prohibited from personally appearing before the PSC, and needs to be mindful of the provision in Section 112.313(8), Florida Statutes, against disclosure or use of certain information, she is not restricted from advising or consulting with parties to the docket or entities affected by it. CEO 08-21, CEO 00-3, CEO 92-3, CEO 80-7, and CEO 77-168 are referenced.


QUESTION:

Are you, a former employee of the Florida Public Service Commission, prohibited by Section 350.0605(2), Florida Statutes, from consulting with and advising telecommunications companies on matters resulting from a docket you worked on as a PSC employee?


Under the circumstances presented, your question is answered in the negative.


In your letter of inquiry, you relate that you were employed by the Florida Public Service Commission (PSC) from September 2003 to April 2006. Inasmuch as it has been more than two years since you left the PSC, you are no longer subject to the post-employment restriction in Section 112.313(9)(a)4., Florida Statutes. However, you do seek our guidance on the applicability of Section 350.0605(2), Florida Statutes, which restricts the representation of clients before the PSC by former employees.


You explain that while you were employed at the PSC, you were assigned to Docket 000121A: "Investigation into the Establishment of Operations Support Systems Permanent Performance Measures for Incumbent Local Exchange Telecommunications Companies." This docket was established to evaluate and implement the federally-mandated requirement instituted as part of the federal Telecommunications Act of 1996,1 which ensured that Competitive Local Exchange Companies ("CLEC's") would be treated fairly and would be given equal access to customers in areas where the Incumbent Local Exchange Companies ("ILEC's") were fully established. 47 U.S.C. 271, in particular, applied to the "Baby Bells," you explain, and it requires AT&T to pay the CLEC's based on Specific Quality Measurements ("SQM's") called Self Effectuating Enforcement Mechanisms ("SEEM") payments. The SQM's and SEEM payments were developed and implemented through Docket 000121A. You further advise that prior to the beginning of your employment with the PSC, this docket went to hearing and the SQM/SEEM plan was promulgated. In an order that implemented the SQM/SEEM plan, the Commission ordered six-month reviews to be conducted by staff, and during your tenure with the Commission, you were assigned to this docket and were involved with all of the six-month review workshops that were held. During that time, you assisted in revamping the SEEM portion and redeveloping formulas and methodology for calculating these payments.


You further relate that some of the CLEC's that are a party to this docket have contacted you and asked if you would be willing to work on their behalf. You recognize that you are being asked to assist them with a matter that was "pending at the time of termination" in which you participated. Although you are not being asked to appear before the Commission and you understand that you cannot contact a PSC employee on behalf a client with regard to Docket 000121A, you ask whether there are any limitations to what you can lawfully do.


There are two provisions implicated by your inquiry. Section 112.313(8), Florida Statutes, prohibits a former agency employee from disclosing or using information not available to members of the general public and gained by reason of her official position--except information relating exclusively to governmental practices--for her personal gain or benefit or for the personal gain or benefit of any other person or business entity. Having left the PSC over three years ago, there is no indication that you possess any "inside information" that could be of any value to another person or business entity.


The other applicable provision that we have jurisdiction to interpret is Section 350.0605(2), Florida Statutes, which restricts the representation of clients before the PSC by former employees. It provides:


Any former employee of the commission is prohibited from appearing before the commission representing any client regulated by the Public Service Commission on any matter which was pending at the time of termination and in which such former employee had participated.


This provision prohibits a PSC employee from "switching sides" in a proceeding and coming back before the PSC representing a utility on the same matter that she had been involved in as a PSC employee. We have had only one previous opportunity to interpret this restriction; in CEO 08-21, we concluded that a former PSC employee was not appearing before the Commission on the same matter he had been involved in as a PSC employee because the subject of the docket was different.


Here, while it is the same docket number that you were involved in as a PSC employee, there is no indication that you would be "appearing before" the PSC if you offer testimony in another state that could eventually be included in an agreement or order that is stipulated to in Florida, if you speak to representatives of telecommunications firms that were parties to the docket, or if you advise or consult with parties to the docket or other entities affected by it. The phrase "appearing before" denotes actual physical attendance, although we construe the term to also include appearing telephonically, in writing, or via any other medium used to communicate directly with the PSC or its staff. It is similar to the phrase "personally represent" that appears in the "Sunshine Amendment" (Article II, Section 8(e), Florida Constitution) and the post-officeholding/employment restriction in Section 112.313(9), Florida Statutes. Regarding those provisions, we have consistently opined that they do not prohibit a partner or counsel associated with the public official from representing a client in those instances when the public official is prohibited from doing so. See CEO 77-168, CEO 80-7, CEO 92-3, and CEO 00-3. In CEO 00-3, we noted that while Section 350.0605(3), Florida Statutes, restricted a former PSC member from accepting employment or compensation from certain entities for two years after she left the Commission, this provision is not applicable to PSC staff and, even if it were, it has been more than two years since you left the Commission.


Accordingly, although you are prohibited from personally appearing before the PSC and its staff on the docket that you were involved with as a PSC employee, you are not prohibited from advising or consulting with parties to the docket or entities affected by it.


ORDERED by the State of Florida Commission on Ethics meeting in public session on December 4, 2009 and RENDERED this 9th day of December, 2009.


____________________________________

Cheryl Forchilli, Chair


[1]Telecommunications Act of 1996, Pub. LA. No. 104-104, 110 Stat. 56 (1996).