CEO 13-8 - July 31, 2013
FORMER FLORIDA LOTTERY EMPLOYEE
CONTRACTING WITH MULTI-STATE LOTTERY ASSOCIATION
To: Mr. Kelly Logan, Tallahassee
A former employee of the Florida Department of the Lottery would not be prohibited under Section 112.3185(4), Florida Statutes, from contracting with an association which pays the Lottery for use of the Lottery's facilities and services.
Would Section 112.3185(4), Florida Statutes, prohibit your holding employment or a contractual relationship, after you leave public employment with the Department of the Lottery, with an association in connection with a contract under which the association pays the Lottery for use of facilities and services?
Your question is answered in the negative, under the circumstances presented.
By your letter of inquiry and additional information provided, you relate that you were employed by the Department of the Lottery (Lottery) beginning in 1987 and that from December 2007 until your retirement on May 31, 2013, you were the Manager for Investigations and Operational Support. You state that your responsibilities in that position included supervising security officers and law-enforcement personnel employed by the Lottery.
You state that you anticipate an opportunity to work as an independent contractor for the Multi-State Lottery Association (MUSL), which has a contract with the Lottery under which MUSL pays for the use of Lottery production facilities for Powerball game drawings and for the services of security personnel at the Lottery headquarters in Tallahassee. MUSL is a non-profit, government-benefit association owned and operated to facilitate operation of multi-jurisdictional lottery games by agreement of its 33 member lotteries, including the Florida Lottery and lottery organizations in 30 other states plus the District of Columbia and U.S. Virgin Islands. You state that under your proposed contract with MUSL, you would supervise MUSL's twice-weekly Powerball game drawings at the Lottery headquarters in Tallahassee and in that capacity, would be responsible for handling and securing equipment used in each Powerball drawing. The relevant contract between the Lottery and MUSL is entitled Agreement for the Provision of Production Facilities for Live Broadcasts of Powerball Lottery Draws (the Lottery Contract).
You state that in your Lottery position you supervised security personnel who, among other duties, provide services to MUSL for the Powerball events. You represent that you had no personal involvement with MUSL drawings and that you personally performed security services for MUSL on just one occasion during equipment maintenance. You ask whether entering into the proposed MUSL contract would violate the post-public employment provision in Section 112.3185(4), Florida Statutes. That provision states:
An agency employee may not, within 2 years after retirement or termination, have or hold any employment or contractual relationship with any business entity other than an agency in connection with any contract for contractual services which was within his or her responsibility while an employee.
Section 112.3185(4) prohibits for two years your contractual relationship with MUSL if that organization's relevant contract with the Lottery is in fact a "contract for contractual services" within the meaning of Section 112.3185(4) and if your employment would be "in connection with" a contract with the Lottery that is now within your responsibility.
Section 112.3185(1)(a), Florida Statutes, provides that the term "contractual service" is defined as set forth in Chapter 287, Florida Statutes, which states, in relevant part:
"Contractual service" means the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors . . . . [Section 287.012(8), Florida Statutes. Emphasis supplied.]
The term "contractor" is defined in Section 287.012(7) as "a person who contracts to sell commodities or contractual services to an agency." [Emphasis supplied.]
Under the Lottery Contract which was executed on December 29, 2011, MUSL is not obligated to sell commodities or services to the Lottery, a government agency. Rather, MUSL compensates the Lottery for MUSL's use of the Lottery's production facilities and services, including a "draw studio," cleaning and maintenance services, a dedicated set with green screen, KU satellite uplink transmissions, 8 PTZ security cameras, three analog telephone lines on the stage, high-speed Internet connection on the stage, host dressing room during production, and tables/chairs on stage for MUSL's personnel. The Lottery Contract also obligates the Lottery to provide "all security personnel necessary for securing MUSL's Powerball draw machines, the live reveal winning numbers, and all necessary security personnel to maintain the integrity of MUSL's drawing process . . . ." Under the Lottery Contract, MUSL pays the Lottery for the above items and is responsible for service, materials, equipment, licenses, and "production services and costs, talent and auditors" for MUSL's Powerball lottery draws, referenced in the Lottery Contract as "the Show." The Lottery Contract also states that the Lottery "may advertise in all media the filming of any MUSL production." Because, in this circumstance, contractual services are not being rendered by a contractor to the Lottery, the two-year employment restriction in Section 112.3185(4), Florida Statutes, would not apply to your proposed contract with MUSL.1
Further, since you state that you were continuously employed at the Lottery beginning in 1987, you are "grandfathered" under Section 112.313(9)(a)6, Florida Statutes, and therefore, exempt from the post-public employment representation limitation in Section 112.313(9)(a)4, Florida Statutes, which prohibits certain former agency employees from personally "representing" another person or entity for compensation before the former employee's former agency for two years following the vacation of his or her position.2
In sum, your proposed contract with MUSL would not be limited by Section 112.3185(4), Florida Statutes.3 This conclusion is grounded in our finding that your situation lacks any rendering of services to the Lottery by a contractor.
The question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 26, 2013, and RENDERED this 31st day of July, 2013.
Morgan R. Bentley, Chair
Your potential contract with MUSL would not be prohibited by Section 112.3185(3), Florida Statutes, since you relate that, while employed at the Lottery, you had no personal or substantial responsibility for procurement or development of the MUSL contract for provision of Lottery production facilities.
Section 24.105(19)(c), Florida Statutes (the Lottery statute), states:
No officer or employee of the [Lottery] department who leaves the employ of the department shall represent any vendor or retailer before the department regarding any specific matter in which the officer or employee was involved while employed by the department, for a period of 1 year following cessation of employment with the department. A violation of this paragraph is punishable in accordance with s. 112.317.
In Section 24.105(19)(d), the Lottery statute authorizes the Florida Commission on Ethics to provide interpretation "as to the more restrictive standard" of conduct "upon the request of an advisory opinion." Pursuant to this authorization, we note that Section 24.103(5), Florida Statutes, defines "retailer" as "a person who sells lottery tickets on behalf of the department pursuant to a contract" and Section 24.103(6) defines "vendor" as "a person who provides or proposes to provide goods or services to the department, but does not include an employee of the department, a retailer, or a state agency." You relate that MUSL, which might contract with you in the year following your Lottery employment, is a non-profit, government-benefit association of which the Lottery department is a "member." Thus, MUSL is neither a retailer nor a vendor for purposes of the one-year post-public employment "representation" restriction in Section 24.105(19)(c), Florida Statutes. Therefore, you would not be restricted in your communications with the Lottery department during your proposed contractual relationship with MUSL, assuming for the sake of argument, the tasks you were to perform for MUSL would amount to representation on a specific matter in which you were involved as a Lottery employee.
If you were to become directly employed by the Lottery department as an independent contractor, you would be subject to the compensation restriction in Section 112.3185(5), Florida Statutes.