CEO 12-04 February 8, 2012

POSTEMPLOYMENT RESTRICTIONS

FORMER FDOT DISTRICT THREE SES EMPLOYEE
ENGAGING IN REPRESENTATION BEFORE DISTRICT THREE
WITHIN TWO YEARS OF LEAVING PUBLIC EMPLOYMENT

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

SUMMARY:

A former SES employee of District Three of FDOT is prohibited by the two-year, revolving door provision of Section 112.313(9)(a)4, Florida Statutes, from representing another person or entity before District Three for two years following vacation of his FDOT employment. However, the former employee is not prohibited from such representation as to other FDOT Districts, as to the Turnpike Enterprise, as to other departments of Florida State government, or as to local governments. CEOs 11-24, 11-10, 09-5, 02-1, and 94-20 are referenced.1


QUESTION:

Are you, a former SES employee of FDOT's District Three, prohibited by the two-year, revolving door provision of Section 112.313(9)(a)4, Florida Statutes, from personally representing, for compensation, another person or entity before District Three for a period of two years following your vacation of FDOT employment?


Under the FDOT work history you present, your question is answered in the affirmative.


By your initial email and additional information provided by you to our staff, you relate that you retired, after twenty-two years of service, on October 31, 2011, from employment with the Florida Department of Transportation (FDOT), vacating a Selected Exempt Service (SES) position.2 Further, you state that you began employment with FDOT in October 1989, as FDOT District Three's public information director, then a Career Service (not a SES) position, and that you remained in that position for the whole of your employment with FDOT. Additionally, you relate that your position remained Career Service until several years ago, when you and a large number of other FDOT employees "were forced to become SES employees."3 Also, you state that your FDOT duties included dissemination of information to the media and public, plus other public-related duties, and that "[t]he only reason [you were] placed in SES was because [you] supervised two employees." Further, you relate that you have signed a contract to begin work with a public relations firm that does work for consultants who do business with FDOT.


Section 112.313(9)(a)4, Florida Statutes, the prohibition relevant to your inquiry, 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 prohibition, Section 112.313(9)(a)2.a.(I), Florida Statutes, defines "employee" to include "any person holding a position in the Selected Exempt Service as defined in s. 110.602."4 And, under your FDOT work history, in which you worked only at District Three, that District, and not other parts of FDOT, are your "agency" for purposes of the prohibition. CEO 11-10. "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.


We find that you are subject to the prohibition for two years following October 31, 2011, the date you vacated FDOT employment. More particularly, in order for the prohibition to apply, one must have been an "employee" (this you were, having been in the Selected Exempt Service at FDOT), one must engage, personally, in "representation" (this you apparently plan to engage in for your private firm employer or its clients), one's representation must be before one's former "agency" (in your case, District Three), and one's representation must be for compensation (obviously, your work will be remunerated).

In making our finding, we have not overlooked your argument that you did not change positions while at FDOT and that you did not voluntarily seek a change from Career Service to SES status, but, rather, that you were "forced to become" SES. In CEO 02-1 we highlighted the need for Legislative clarification as to whether Section 112.313(9)(a)4 encompassed Career Service employees who did not voluntarily make a change from Career Service to SES or another covered position type. Subsequent to that opinion the Legislature amended the statute to include its current language: ". . . 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 . . ." See Chapter 2006-275, Laws of Florida. Thus the Legislature has spoken explicitly to this situation.

Also, and unfortunately for you, your FDOT employment history shows that because you began employment in October 1989, you are not exempted from the prohibition by Section 112.313(9)(a)6, Florida Statutes. This provision "grandfathers" persons continuously employed by their former agency since prior to, or on, July 1, 1989. CEO 94-20.

In addition, we have not overlooked your argument that several of our prior opinions concerning the prohibition deal with former FDOT engineers, former FDOT employees involved in financing, designing, or planning particular FDOT projects, or former FDOT Senior Management Service (SMS) employees, and thus that these opinions should not be relevant to your situation (a situation of one who was not an engineer, of one who was not so involved in particular projects, or of one who was not SMS). We are not persuaded by this argument. While certain of our opinions concerning the prohibition deal with former FDOT employees in various subject matters of FDOT employment, Section 112.313(9)(a)4, by its express terms, is not limited to FDOT employees, much less to particular subsets of FDOT employees; rather, the statute encompasses former SES employees, former SMS employees, former certain other covered position holders, and former holders of positions equivalent to SES, SMS, and certain other covered positions. See, for example, CEO 11-24 (former employee of Department of Children and Family Services).

Accordingly, we find that you are subject to the prohibition of Section 112.313(9)(a)4, Florida Statutes,5 against personal, compensated, representation6 before your former agency7 for two years following your vacation of FDOT employment.


ORDERED by the State of Florida Commission on Ethics meeting in public session on February 3, 2012 and RENDERED this 8th day of February, 2012.


____________________________________

Robert J. Sniffen, Chairman


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

[2]In preparing your opinion request for our consideration, our staff sent you several questions regarding your FDOT employment history, and you, in conjunction with the efforts of an FDOT personnel employee, provided information responsive to the questions. From the information provided, it appears that you were a covered "employee," within the meaning of Section 112.313(9)(a)4, Florida Statutes, by virtue of having been the holder, at FDOT, of a position in the Selected Exempt Service.

[3]Apparently, you refer to the en masse transfer of Career Service employees to the SES, occasioned by then Governor Bush's Service First Initiative (Chapter 2001-43, Laws of Florida).

[4]Section 110.602 states:

The Selected Exempt Service is created as a separate system of personnel administration for select exempt positions. Such positions shall include, and shall be limited to, those positions which are exempt from the Career Service System pursuant to s. 110.205(2) and (5) and for which the salaries and benefits are set by the department [of Management Services] in accordance with the rules of the Selected Exempt Service. The department [of Management Services] shall designate all positions included in the Selected Exempt Service as either managerial/policymaking, professional, or nonmanagerial/nonpolicymaking.


We find nothing in the situation you present that indicates that the position you vacated at FDOT was other than a SES position as defined in Section 110.602.

[5]In addition, please be aware that prohibitions of Section 112.3185, Florida Statutes, are potentially applicable to you. For guidance as to the operation of the post-public-employment provisions of Section 112.3185, see CEO 11-24.

[6]Please note that "representation" is very broadly defined, including almost all contact for your employer (firm) or its clients with District Three or its personnel for the two-year period, unless the contact is limited to rote, mechanical contact necessary to deliver or perform a contract, and is limited to contact not made in an effort to get District Three or its personnel to do or not do something. See CEO 11-24 (note 10) and CEO 09-5.

[7]Again, we emphasize that under your FDOT work history, District Three is your "agency" as to which the prohibition applies; but that you are not prohibited as to contact with parts of FDOT other than District Three, with the Turnpike Enterprise, or, of course, with other departments of Florida State government or local governments.