FDOT DISTRICTS ONE AND SEVEN FORMER ENGINEER REPRESENTING FIRM OR CLIENTS BEFORE DISTRICTS
To: Deborah L. Snyder, P.E.(Bartow)
A former FDOT Districts One and Seven SES employee is subject to the two-year, post-public-employment, representation prohibition of Section 112.313(9)(a)4, Florida Statutes, as to Districts One and Seven. However, the employee is not restricted as to contact with Districts One and Seven when such contact is limited to fulfilling her firm's or employer's obligations under FDOT contract(s). CEO 09-5, CEO 11-10, CEO 11-21, and CEO 11-24 are referenced.1
Are you, a former FDOT Districts One and Seven engineer, subject to the two-year, post-public-employment, "representation" restriction of Section 112.313(9)(a)4, Florida Statutes, as to Districts One and Seven?
Your question is answered in the affirmative.
You inquire as to whether, and to what extent, you are subject to the two-year, post-public-employment, "representation" restriction (prohibition) of Section 112.313(9)(a)4, Florida Statutes,2 given your public agency work history. Via your recent email and prior correspondence between you and our staff, you relate that you vacated employment with the Florida Department of Transportation ("FDOT") on July 1, 2011, after twenty years of service, and that you are employed by a private engineering firm. You state that upon your departure from FDOT, you were the District Materials Research Engineer ("DMRE"), a Selected Exempt Service ("SES") position responsible for both FDOT District One and FDOT District Seven. More particularly, as to your FDOT employment history, you relate that from December 1992 to October 1993, you worked as a Traffic Operations Engineer for the Southwest Area Office ("SWAO") in Fort Myers, that you moved to Bartow and worked as the Assistant District Traffic Operations Engineer from October 1993 until July 2000, when you were promoted to District Traffic Operations Engineer ("DTOE"), a position you held until July 2004, when you assumed the DMRE position you vacated last July.3
You acknowledge our prior opinions finding the restriction to prohibit former FDOT personnel from representing their firm or others before their former FDOT District or Districts, but maintain that your situation should be distinguished from that of our prior decisions because some of the FDOT personnel, in both District One and District Seven, whom you would be interacting with in your private employment are persons you rarely interacted with while you held your last position (DMRE) at FDOT. That is, you maintain that most of the FDOT personnel you would be contacting privately for your firm or its clients are personnel you rarely interacted with during your last seven years of FDOT employment due to their being involved in FDOT "fields" or subject matters different from materials research, the last subject matter you worked in as an FDOT employee.
Relevant statutes provide:
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. [Section 112.313(9)(a)4, Florida Statutes.]
A“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 112.312(22), Florida Statutes.]
Section 112.313(9)(a)4 prohibits a former SES employee's contact within the broad meaning of "representation" with the employee's former "agency" or "agencies" for the employee's private firm or its clients for two years following vacation of the employee's public employment. See, for example, CEO 11-10 (FDOT District Seven former employee engaging in representation before other FDOT Districts and Turnpike Enterprise) and CEO 11-21 (FDOT Districts One and Seven former structures maintenance engineer representing company before Districts).
We find that you are restricted by the statute as to both Districts One and Seven. By its terms (" . . . before the agency . . ."), the restriction references the governmental unit or place where the former employee worked, regardless of whether, as in your situation, some or most of the particular personnel currently there and with whom the employee would have private capacity contact were or were not personnel with whom the employee usually, rarely, or relatively recently worked.4 The Legislature, in enacting the prohibition, did not choose to make such a distinction, nor shall we. Our instant finding is in accord with the reasoning of CEO 11-21 in which we, in response to an argument by a former FDOT engineer that only one FDOT District, and not two, was his "agency" for purposes of the restriction, stated:
. . . while your work history with District Seven is more significant or involved than your work history with District One, your District One history . . . 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 from representing5 your firm, its clients, or others before Districts One and Seven of FDOT for two years following your vacation of your FDOT employment.6
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2012 and RENDERED this 1st day of August, 2012.
Susan Horovitz Maurer, Chair
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
Section 112.3185, Florida Statutes, contains additional post-public-employment restrictions potentially applicable to a given former public employee in a given situation. Apparently, you have no questions or issues relevant to these restrictions. For a discussion of Section 112.3185, see CEO 11-24.
You state that your first two FDOT positions were Career Service positions but that you became a SES employee in July 2000.
In the context of FDOT, we have construed "agency" not to mean the whole of the Department, but, rather, to mean a District or Districts of a particular former FDOT employee. However, this construction is, nevertheless, a unit or "place" construction. CEO 11-10.
However, we find that you are not restricted by Section 112.313(9)(a)4 from contact with District One or District Seven when such contact is limited to fulfilling your firm's or employer's obligations under FDOT contract(s). See CEO 09-5, especially items "B" and "C" of the opinion.
The restriction does not apply to your representation before other FDOT Districts, before the Turnpike Enterprise, before local governments, before the federal government, or before private parties.