CEO 11-21 October 26, 2011

POSTEMPLOYMENT RESTRICTIONS

FDOT DISTRICTS ONE AND SEVEN
FORMER STRUCTURES MAINTENANCE ENGINEER
REPRESENTING COMPANY BEFORE DISTRICTS


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


SUMMARY:

A former SES employee of FDOT Districts One and Seven is subject to the two-year, post-public-employment, "representation" prohibition of Section 112.313(9)(a)4, Florida Statutes, as to both District One and District Seven, but not as to other Districts or the Turnpike Enterprise. CEOs 11-10 and 94-20 are referenced.1


QUESTION:

Are you, a former FDOT Districts One and Seven Structures Maintenance Engineer, subject to the two-year, post-public-employment, "representation" restriction of Section 112.313(9)(a)4, Florida Statutes, as to both District One and District Seven?


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


By your recent written inquiry and attached copies of prior email correspondence between you and our staff, we are advised that you vacated a Selected Exempt Service (SES) Florida Department of Transportation (FDOT) position (Districts One and Seven Structures Maintenance Engineer) on July 29, 2010, after more than twenty years of continuous service at FDOT, starting in a Career Service System status, which was converted to SES status a number of years ago under the then-Governor's Service First Initiative.2 Continuing, you advise that prior to your assignment as Districts One and Seven Structures Maintenance Engineer in February 1995, you were employed in, and all of your FDOT work was performed for, District Seven, including technical oversight work. You relate that beginning in February 1995, you performed similar technical oversight work for both District Seven and District One. However, you advise that your FDOT involvement in District One also differed from your involvement in District Seven. More particularly, you advise that your office and base of operations was located in District Seven, where you were cost center manager for a group that included a staff of twelve; that you had no participation in District One administrative or management meetings, which significantly minimized your interaction with District One personnel; that neither you nor anyone you supervised held supervisory responsibility over District One employees; and that neither you nor anyone you supervised "inhabited in" District One offices, which significantly minimized interaction with District One personnel. Continuing, you advise that for more than eight years prior to your recent vacation of your FDOT position, you participated in no Technical Review Committee (TRC) meetings to recommend consultant contract acquisitions for District One projects, and had no influence on District One TRC members during their project recommendation period, as was required by procedure and practice. You state that the District One Consultant Selection Committee (CSC) reviewed the TRC recommendations and made the final selection, and that you participated administratively, usually in writing or by telephone, in the CSC meetings, but only to express symbolic concurrence with the TRC recommendation. Additionally, you advise that your current private employer (a company), sought, just prior to your departure from FDOT employment and coincidental in time with your employment discussions with the company, a District Seven engineering support contract from your then FDOT office, but that the District Seven TRC, which included staff from your then-FDOT office, did not recommend the company and the District Seven CSC selected another firm, and that you exerted no influence in this process; and that prior to your FDOT departure and prior to any employment considerations or discussions of yours with the company, it sought a District One engineering support contract from your FDOT office, but that the company was unsuccessful, as it had been regarding District Seven, with you exerting no influence in the District One process, either. Also, you advise that beginning January 1, 2003, the implementation of comprehensive structures asset maintenance contracts under your oversight responsibility further limited interaction between you and District One staff and between persons you supervised and District One staff; that your personal interaction with District One staff was infrequent, occurred primarily with senior District One staff members, and specifically related to urgent or emergency response issues; and that these District One senior staff members included the Secretary (a person who no longer is with FDOT), the Director of Production (no longer with FDOT), the Materials Engineer (no longer with FDOT), the Bartow Operations Engineer (no longer with FDOT), and the Ft. Myers Operations Engineer (also no longer with FDOT). Further, you advise that your former position had unique work responsibilities, for two Districts, and that such a position is extremely uncommon at FDOT; and that you did not seek the "dual district" responsibility for the position, but, rather, that you "inherited" a position which had two-district responsibility prior to your assignment to the position.

Sections 112.313(9) (a) 4 and 112.312(22), Florida Statutes, provide, respectively:


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.


'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.

Section 112.313(9) (a) 4 restricts (prohibits) your representation of your employer (company), or of any other person or entity other than your individual, natural person self, before the "agency" with which you were employed, for two years after your leaving of public employment.

It is apparent from your inquiry that you realize that you, given your work history, are restricted as to District Seven (that you acknowledge or realize that District Seven was an "agency" of yours for purposes of the statute). However, in view of our recent construction of "agency" in CEO 11-10 (FDOT District Seven former SMS employee engaging in representation before other FDOT Districts and Turnpike Enterprise), you seek our view as to whether, under your FDOT work history, District One also is your "agency" within the meaning of the restriction.

Under the circumstances presented, we find that District One also is your "agency," and, thus, that you are restricted as to both District One and District Seven for two years from your leaving FDOT employment. While in CEO 11-10, we receded from our previous determinations that the whole of FDOT was a former FDOT employee's "agency" for purposes of Section 112.313(9)(a)4, regardless of whether a former employee had had a role or responsibility at a particular part of FDOT, we did so in the context of a former FDOT employee whose work history at FDOT differed sharply from yours. The former employee in CEO 11-10, who had served as FDOT District Seven's Director of Transportation Development, presented a work history indicating no involvement with other FDOT Districts. In contrast, while your work history with District Seven is more significant or involved than your work history with District One, your District One history, as presented in your inquiry and set forth above, is by no means nonexistent or insignificant. Further, notwithstanding that some of the District One persons whom you interacted with while you were an FDOT employee have left FDOT employment, others, no doubt, remain, and District One was a place at which you had a solid presence as an FDOT employee.

Accordingly, we find that you are prohibited by Section 112.313(9)(a)4, Florida Statutes, from representing your company or another person or entity before FDOT Districts Seven and One for two years from your vacation of FDOT employment; but we find that you are not prohibited as to other FDOT Districts or as to the Turnpike Enterprise.


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]It appears that you began FDOT employment too late for applicability of the "grandfather clause" of Section 112.313(9)(a)6, Florida Statutes, which can exempt persons who continuously held State (e.g., FDOT) employment (of any status, including SES) since on or before July 1, 1989, from the restriction of Section 112.313(9)(a)4. CEO 94-20.