CEO 12-22 December 5, 2012

POSTEMPLOYMENT RESTRICTIONS

FORMER FDOT EMPLOYEE REPRESENTING FDOT CONTRACTOR


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

SUMMARY:

A former FDOT Central Office SES employee is subject to the two-year, post-public-employment, representation prohibition of Section 112.313(9)(a)4, Florida Statutes, as to the FDOT Central Office and the FDOT Districts. However, the employee is not restricted from such representation as to the Turnpike Enterprise, as to other entities of Florida State government, or as to local government. CEO 12-04, CEO 11-24, CEO 11-10, CEO 09-5, CEO 08-18, CEO 06-1, and CEO 04-16 are referenced.


QUESTION:

Would Section 112.313(9)(a)4, Florida Statutes, prohibit you during the two-year period after your employment at FDOT from personally representing, for compensation, your company before the Central Office of FDOT and the FDOT Districts for a period of two years following your vacation of FDOT employment?


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, given your public agency work history. By your letter of inquiry and additional information provided, you relate that you were employed full-time in the Central Office of the Florida Department of Transportation (FDOT) from January 2, 2004, until July 5, 2012, and that you are now working for a private engineering firm. You state that you were initially hired at FDOT as an Assistant State Structures Engineer, which was a Selected Exempt Service (SES) position located in FDOT's Central Office, and from November 2005 until July 2012 you were employed in the Central Office as the State Roadway Design Engineer, also an SES position.

You relate that in your public position as State Roadway Design Engineer you led and coordinated the State Roadway Design Office (SRDO), where you supervised 30 State employees, supported by consultants, in developing and implementing policies for uniform development of roadway design throughout the State. You provided an FDOT Position Description which describes the percentage of your time spent on your former duties and responsibilities as follows:


Also, you explain that staff members within SRDO were assigned in 2011 to three minor roadway design projects located in FDOT District 3, which were intended to give "real world" design experience to entry-level engineers who otherwise did not have such experience since they were based in the Central Office. You state that you did not supervise the work on those projects but that you attended staff meetings to ensure that deadlines were met. Further, you state that SRDO personnel also were assigned to work with FDOT Districts 1, 5, and 7 during a six-month period in 2011-12 performing a review of a design prepared by a consultant related to the proposed High Speed Rail Project and that your role was to ensure that the SRDO review was substantive.

You inquire whether Section 112.313(9)(a)4 would prohibit your working for an engineering firm, within two years of your separation from Central Office employment, vis--vis any of the FDOT Districts or the Turnpike Enterprise,1 as follows:


Section 112.313(9)(a)4, Florida Statutes, 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.


'Agency' means any state, regional, county, local, or municipal government entity of this state, whether executive, judicial, or legislative; any department, division, bureau, commission, authority, or political subdivision of this state therein; or any public school, community college, or state university. [Section 112.312(2), Florida Statutes]


Section 112.313(9)(a)4 prohibits you from "representing" for compensation your firm before your former public "agency" for two years after vacation of your public position. "Representing" is defined in Section 112.312(22), Florida Statutes, as "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."

It is clear that you were an SES employee when you were employed at FDOT; that your present work for an engineering firm is compensated and the firm is a person or entity other than yourself; and that several of your proposed activities meet the definition of "represent" or "representation." Thus, the issue is the determination of your "agency" for purposes of the prohibition. We find, under the public employment work history you present, that your "agency" is the entire Department, including the Central Office and the Districts.

Your work history shows that you served in a liaison and advisory role to every FDOT District regarding statewide policies for uniform roadway standards. In that capacity, you fielded telephone inquiries from the Districts and organized statewide meetings attended by District personnel. Even though you relate that you did not supervise three relatively minor District 3 roadway design projects assigned to SRDO in 2011, you state that you ensured the personnel under your supervision met deadlines for those projects. Regarding the SRDO review of a consultant's design for the High Speed Rail Project, which involved Districts 1, 5, and 7, your influence would have extended to those three districts, by virtue of SRDO staff's involvement, even if your participation was limited to contact with SRDO staff within the Central Office. Most importantly, most of the work you produced and supervised had statewide application and, thus, your influence extended to every FDOT District, as evidenced by the name of your position, State Roadway Design Engineer, and the name of the office you directed, the State Roadway Design Office.

As we stated in CEO 11-10, the restriction on representation in Section 112.313(9)(a)4 refers to an employee's "agency" as the lowest departmental unit within which the employee's influence might reasonably be considered to extend. In CEO 11-10, we receded from earlier opinions in which we had construed the two-year, post-public-employment ban of Section 112.313(9)(a)4 to be the whole of FDOT when, in fact, an employee's work had been entirely focused on a particular District.2 We predicated our reconsideration of the statutory provision on the understanding that the influence of an employee of FDOT "might reasonably be considered to extend" only to the one or more Districts which the employee's work concerned. We have not, however, applied this same reasoning to a former employee, such as yourself, whose influence emanated from the center of the FDOT organization, the Central Office, and "might reasonably be considered to extend" to every FDOT District. The issue we confront here concerns the "agency" of a Central Office employee as it relates to the two-year "representation" restriction, which we have not addressed in previous opinions concerning Section 112.313(9)(a)4. Since your work developing uniform roadway standards and other aspects of your former FDOT position necessarily were statewide, as described above, we find your agency to include the FDOT Central Office and also the FDOT Districts.

Accordingly, we find that you are prohibited by Section 112.313(9)(a)4, Florida Statutes,3 from representing4 your firm, its clients, or others before the Central Office and any of the FDOT Districts for two years following the date you vacated your FDOT employment. However, you are not restricted from representation as to the Turnpike Enterprise,5 as to other entities of Florida State government, or as to local government.

Your question is answered accordingly.


ORDERED by the State of Florida Commission on Ethics meeting in public session on November 30, 2012 and RENDERED this 5th day of December, 2012.


____________________________________

Susan Horovitz Maurer, Chair


[1]You do not inquire as to whether the Central Office is part of your former "agency." As stated below, we find that the Central Office, and more of FDOT, is your "agency."

[2]For example, in CEO 09-5, we found that, for purposes of Section 112.313(9)(a)4, the "agency" of a former District 7 Design Engineer in an SES position would be "the whole of FDOT" and, thus, the former employee was prohibited from "representation" before all FDOT Districts during the two years following his public employment. See CEO 06-1 and CEO 04-16.

[3]You ask no question regarding Section 112.3185, Florida Statutes. For general information on the operation of the post-public-employment prohibitions of this statute, see CEO 11-24.

[4]Note that this definition is very broad, including almost all contact on behalf of your employer with FDOT 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 not made in an effort to get FDOT or its personnel to do or not do something. See CEO 12-04, CEO 11-24 (note 10) and CEO 09-5.

[5]In CEO 08-18, we found, in considering an inquiry concerning Section 112.313(9)(a)4, that the Florida Turnpike Enterprise and FDOT are separate agencies.