CEO 11-19 October 26, 2011

POSTEMPLOYMENT RESTRICTIONS

DCA/AWI FORMER SES EMPLOYEE
WORKING FOR REGIONAL PLANNING COUNCILS

To:        Sheri Coven (Tallahassee)


SUMMARY:

Advice is provided to a former Selected Exempt Service employee of the Department of Community Affairs and the Agency for Workforce Innovation regarding the applicability of the two-year, post-public-employment, "representation" restriction of Section 112.313(9)(a)4, Florida Statutes, to her work for Regional Planning Councils. CEOs 90-4, 93-14, 00-11, 02-12, and 03-10 are referenced.1


QUESTION:

Given your public (State) employment history, what are the restrictions under Section 112.313(9)(a)4, Florida Statutes, applicable to your representation of Regional Planning Councils within two years of your leaving State employment?


Your inquiry is answered as set forth below.


By your letter of inquiry, we are advised that you served from February 19, 2007 to June 30, 2011 as the Director of Intergovernmental Affairs for the Florida Department of Community Affairs (DCA), a Selected Exempt Service (SES) position reporting to the Secretary of DCA. Further, you write that responsibilities of the position included developing and enhancing DCA's relationship with State, regional, and local government entities within Florida, as well as with public and private sector organizations and citizens, in order to facilitate open communication, the reliable flow of public information, agency responsiveness, and constructive working relationships. You also advise that in holding the DCA position, you interacted and worked with all personnel in DCA. Additionally, you advise that on July 1, 2011, you changed jobs, becoming the Director of Intergovernmental Affairs for the Florida Agency for Workforce Innovation (AWI), also an SES position, reporting directly to AWI's chief of staff. Further, you relate that during your short tenure with AWI (you advise that you will have resigned from AWI effective September 30, 2011), you primarily worked with its communications staff and director's office on transition projects related to the recent merger of AWI and other agencies (see details regarding the merger, below), and that you were a member of AWI's executive team.

Also, we are advised that on October 1, 2011, in accord with Senate Bill 2156 (passed by the 2011 Legislature), the Florida Department of Economic Opportunity (DEO) was created by merging DCA's Division of Community Planning and Division of Housing and Community Development, all of the programs of AWI,2 and the Governor's Office of Tourism, Trade and Economic Development (OTTED). Further, you advise that on October 1, 2011, you will become an employee of the Apalachee Regional Planning Council, in which capacity you will be working with and representing all of Florida's Regional Planning Councils (RPCs). Additionally, you advise that for over two decades, the RPCs enjoyed a contractual relationship with DCA, carrying out certain planning-related functions by virtue of a Legislative appropriation; but that currently there is no such contract, due to the Governor's veto of RPCs funding for the current fiscal year.

In light of your work history and the changing nature of the structure of State government as described, you ask the following questions3 regarding Section 112.313(9)(a)4, Florida Statutes,4 which would prohibit your (as a former SES employee) personal, compensated, "representation"5 of RPCs (or of any other person or entity, other than your own natural-person self),6 within two years of your leaving public agency employment, if the representation is "before the agency with which [you were] employed":


QUESTION 1:

What is the extent of the prohibition of Section 112.313(9)(a)4 with respect to the new Department of Economic Opportunity, which includes some functions and personnel of your former public agency employers, DCA and AWI?


In order for the restriction to apply, a former employee's representation must be before the State agency which formerly employed her; it is plain from the terms of the statute that the restriction does not apply to all entities of State government. By way of easy example, it is clear that the restriction would not apply to a former Department of Transportation employee's representation before the Department of Children and Family Services. However, the analysis becomes more difficult in situations such as yours, where one's former agency or agencies have been abolished or have had functions or personnel transferred to new or other agencies, with the new agency perhaps encompassing more subject matter, responsibilities, or personnel than the old. In CEO 93-14 (Question 6),7 we dealt with such a situation, regarding a former employee of the Department of Environmental Regulation (DER), which had had its programs, activities, functions, powers, duties, and personnel transferred to the then-new Department of Environmental Protection (DEP), which new Department had become a combination of the former DER and the former DNR (Department of Natural Resources). We found that the former DER employee was restricted when her post-public-employment representation was directed to personnel of the new department (DEP) who were formerly personnel of her old department (DER), or when her representation concerned programs, activities, functions, powers, or duties of her former department which subsequently resided in the new department. Our finding in CEO 93-14 gave effect to a purpose of the prohibition--to prevent the peddling of influence with one's former public agency and the concomitant appearance of impropriety and loss of public confidence that would result--while not unduly expanding the scope of the prohibition to include additional personnel or subject matter of the new agency.

We also find this reasoning to be applicable to your situation. Your former agencies are DCA and AWI, thus, we find that you are not prohibited from engaging in compensated representation of Regional Planning Councils before the whole of DEO; rather, you are prohibited from representation only as to the personnel of DEO who were personnel of DCA or AWI and as to the programs, activities, functions, powers, or duties of DCA or AWI which now reside in DEO. For example, we find that you can interact with former employees of OTTED who were transferred to DEO, inasmuch as they were not formerly employed by either DCA or AWI, and inasmuch as OTTED was not an agency by which you were employed.8


QUESTION 2:

When does the two-year restriction begin to run for you regarding DCA (and its transferred subject matter and personnel); and when does it begin to run for you regarding AWI (and its transferred subject matter and personnel)?


The statute provides that the restriction runs for two years "following vacation of position." Thus, under your work history as to DCA, we find that the first day of the two-year period is July 1, 2011 (since you vacated your DCA position on June 30); and, as to AWI, October 1, 2011 (since you will have vacated your AWI position on September 30).


QUESTION 3:

Does the statute prohibit you from answering informational questions posed by former DCA or former AWI personnel who now work for DEO?


While in a rote or mechanical sense such contact could be said to come within the applicable definition of "representation," we have not found such to be prohibited, provided that the answering consists of bona fide, good faith responses to requests for information on specific subjects, and the contact was not solicited directly or indirectly by the former public officer or employee. CEO 90-4 (former State representative appearing before a subcommittee of the Legislature or appearing before an individual member of the Legislature within two years of leaving office). Similarly, we find that it will not violate the statute should you provide such good-faith responses to unsolicited inquiries posed by former personnel of DCA or AWI who now work for DEO.


QUESTION 4:

Does the statute prohibit your participation in meetings of REDI (the Rural Economic Development Initiative) as a representative of the RPCs?


You advise that prior to the passage of SB 2156, the Rural Economic Development Initiative (REDI) was created within OTTED [see Section 288.0656, Florida Statutes (2010)]. Further, you advise that the participation of State and regional agencies, including the RPCs, DCA, and AWI (which became DEO), in REDI meetings was Legislatively authorized, and that you participated in REDI meetings in the past as a representative of DCA, but that effective October 1, 2011, REDI was created within DEO.

Inasmuch as neither REDI, OTTED, nor DEO are a former "agency by which you were employed," we find that your participation in meetings of REDI will not amount to prohibited "representation," provided that the meetings do not concern any transferred programs, activities, functions, powers, or duties of former DCA or AWI.


QUESTION 5:

Would it violate Section 112.313(9)(a)4 were you to represent the RPCs before Workforce Florida, Inc., (WFI)?


You advise that prior to the passage of SB 2156, Workforce Florida, Inc., (WFI) was administratively housed within AWI, but was not subject to control, supervision, or direction by AWI in any manner [see Section 445.004, Florida Statutes (2010)] and that effective October 1, 2011, WFI became administratively housed within DEO, but is not subject to the DEO's control, supervision, or direction. Further, Section 445.004(1), Florida Statutes (2010), states that WFI was not "a unit or entity of state government." Finally, you advise that you never were an employee of WFI.

We find that you are not prohibited by Section 112.313(9)(a)4 from representation before WFI. Notwithstanding that WFI was administratively housed within AWI, an agency which did formerly employ you, we find that it was not a part of AWI for purposes of the prohibition. See CEO 03-10, in which we found that a former employee of the Department of Management Services (DMS) was not prohibited from representing clients before so-called "dotted-line" agencies merely administratively assigned to DMS, such as the Correctional Privatization Commission, the Division of Administrative Hearings, and the State Technology Office.


QUESTION 6:

Does the statute prohibit you from representing persons or entities before Enterprise Florida, Inc.?


You advise that Enterprise Florida, Inc., (EFI) is a nonprofit corporation and is not a unit or entity of State government, but that pursuant to Section 288.901(3), Florida Statutes (2011), EFI must enter into a performance-based contract with DEO, which contract is to include annual measurements of EFI's performance.

We find that you are not subject to the restriction regarding EFI as, to the extent that EFI can be considered a government agency, it was not the agency by which you were employed.


QUESTION 7:

Does the statute prohibit you from representing persons or entities before the Division of Emergency Management?


You advise that on July 1, 2006 (a number of months before you became an employee of DCA), the Florida Division of Emergency Management (DEM) became a separate budget entity, no longer under the control of DCA, but instead reporting directly to the Governor; that an administrative services agreement between DEM and DCA was required by a statute that was eliminated by the 2011 Legislature; that pursuant to SB 2156, DEM now is established within the Executive Office of the Governor; that like all other State executive agencies, DCA had an emergency support function role to play when the State emergency operations center was activated for a hurricane or other natural disaster; that as an employee of DCA, you were tasked with helping to administer the Florida Emergency Information Line when its activation was authorized by the Governor; that you were never an employee of DEM; that you had no role in overseeing the administrative services agreement between DCA and DEM; and that your position of employment at DCA received no funding support from DEM through the administrative services agreement.

Under the facts you present regarding DEM, we find that the two-year restriction does not apply to your representation of RPCs before DEM.9 There is no indication that DEM was an agency by which you were employed, especially as you state that it became a separate budget entity, no longer under the control of DCA, but, instead, reporting to the Governor, before you became employed with DCA.

Your inquiry is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on October 21, 2011 and RENDERED this 26th day of October, 2011.


____________________________________

Susan Horovitz Maurer, Vice-Chair


[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

[2]You advise that prior to the passage of SB 2156, Workforce Florida, Inc., was administratively housed within AWI, but not subject to the control, supervision, or direction of AWI, in any manner [see Section 445.004, Florida Statutes (2010)]; and that effective October 1, 2011, Workforce Florida, Inc., was administratively housed within DEO, but is not subject to the control, supervision, or direction of the newly-merged (newly-created) DEO. Also, you state that Enterprise Florida, Inc., is a nonprofit corporation, registered, incorporated, organized, and operated in compliance with Chapter 617, Florida Statutes, and that it is not a unit or entity of state government; however, you advise that pursuant to Section 288.901(3), Florida Statutes (2011), it must enter into a performance-based contract with DEO, which includes annual measurements of its performance.

[3]We have rephrased your questions; our intent in so doing is not to alter their substance.

[4]Section 112.313(9)(a)4 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.

[5]"Represent" or "representation" is defined in Section 112.312(22), Florida Statutes, to mean

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.

[6]The restriction of Section 112.313(9)(a)4 contains an exemption which is applicable when the employer one represents after leaving their SES position or other covered position is "another agency of state government." However, applicability of the exemption is limited to situations where one's employer is a State-level (not local) government agency. CEO 93-14 (Question 7). And, it appears to us that RPCs are local, not State, agencies. Section 186.504(1), Florida Statutes, provides:

A regional planning council shall be created in each of the several comprehensive planning districts of the state. Only one agency shall exercise the responsibilities granted herein within the geographic boundaries of any one comprehensive planning district.

[7]We have receded from some of our findings in CEO 93-14; however, we have not receded from the findings discussed in the instant inquiry.

[8]Your participation, as a representative of and while employed by DCA, in meetings of the Rural Economic Development Initiative (REDI, and see Question 4, herein), when REDI existed within OTTED, does not serve to restrict your representation regarding former OTTED employees or former OTTED subject matter now situated at DEO. This is because applicability of the restriction necessarily is connected to the former employee having been employed by a particular agency, and your work history does not show that you were employed by OTTED. We have found this to be the case even where a former employee may have worked with the personnel or subject matter of an agency other than the one by which he or she was employed. See CEO 00-11, in which we found that Section 112.313(9)(a)4 did not apply to prevent a former general counsel of DEP from representing clients before the BOT (Governor and Cabinet sitting as the Board of Trustees of the Internal Improvement Trust Fund), notwithstanding that he personally participated as staff to the BOT during his tenure as DEP general counsel, reasoning that he was employed by DEP and not BOT. Similarly, see CEO 02-12, in which we found that a former attorney employee of the Agency for Health Care Administration (AHCA), while prohibited for two years as to representation before AHCA, was not prohibited as to representation before various Department of Health Boards, even though she interacted with the Boards in her AHCA employment, provided the representation did not include contact with AHCA or its employees.

[9]In regard to this question, in addition to asking whether you would be subject to the two-year prohibition regarding representing the RPCs before DEM, you also ask whether you would be prohibited from "continuing to play a role in any of [DEM's] emergency support functions," or from "assisting in the administration of contracts between DEM and the RPCs?" To the extent these items are intended to be inquiries separate from the representation inquiry regarding DEM, we find that Section 112.313(9)(a)4 would not prohibit them, under our reasoning expressed above.