CEO 16-14 – December 14, 2016
FORMER FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION
EMPLOYEE REPRESENTING TRUSTEE
To: Name withheld at person's request (Tallahassee)
Advice is provided to an employee of the Florida Department of Environmental Protection regarding applicability of Sections 112.313(9)(a)4 and 112.3185, Florida Statutes, if he leaves his public position and accepts employment with a private entity. CEO 09-5, CEO 11-10, CEO 11-24, CEO 12-04, CEO 12-022, and CEO 14-1 are referenced.1
How will the post-public-employment "representation" restriction of Section 112.313(9)(a)4, Florida Statutes, and the post-public-employment restrictions of Sections 112.3185(3) and (4), Florida Statutes, apply to you, an employee of the Florida Department of Environmental Protection, once you leave public employment, in light of your public employment history?
Under the circumstances presented, your question is answered as set forth below.
In your letter of inquiry and additional information provided to our staff, you relate that since September 2014 you have been employed by the Florida Department of Environmental Protection (FDEP) as the Program Administrator of the Waste Cleanup Program (WCP), a Selected Exempt Service (SES) position based in the Waste Management division of FDEP's Tallahassee office. Further, you state that in your public position you manage and supervise several sections within the WCP, including the Site Screening Section which conducts site screening assessments on potential Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)2 Superfund sites for inclusion on the National Priorities List, and the Waste Site Cleanup Section which is responsible for managing state-funded investigation and cleanups of hazardous waste sites and coordinating with the United States Environmental Protection Agency (USEPA). You relate that in your capacity as Program Administrator of the WCP you have limited interactions with all six FDEP District Offices, primarily in the form of participation in teleconferences and written interactions regarding pending FDEP projects. Moreover, you state that with respect to FDEP's Northeast District Office you also have attended meetings coordinated by Jacksonville area community stakeholders wherein FDEP personnel were in attendance in an observational capacity. However, you clarified that you have no authority over, nor any responsibilities regarding, any personnel or activities performed by any District Office, including the Northeast District Office.
You also relate that your position does involve the supervision of FDEP contract managers who manage various contracts on behalf of FDEP. However, you advise that you personally have not been involved in the development or procurement of any FDEP contracts nor have you or your FDEP subordinates been involved in the management of any FDEP contracts involving the Superfund site discussed below.
You state that you are interested in potentially leaving your public employment in favor of a job opportunity as Trust Site Manager with a federal court-appointed trustee (Trustee) that has taken title to a federal Superfund CERCLA site located in Jacksonville (Site). The Trustee is a limited liability company of which a corporation is the sole member. You further state that the Trustee itself has no employees and, as such, if you were to accept the prospective job opportunity you would be employed by the corporation.
You state that your responsibilities as Trust Site Manager would be governed by a bankruptcy consent decree and environmental settlement agreement (Settlement Agreement) and a multistate trust agreement.3 Pursuant to the Settlement Agreement, the Trustee has been selected by the U.S. government and the USEPA to serve as the trustee of several waste cleanup sites, including the Jacksonville Site.4 With respect to the Jacksonville Site, the USEPA has been designated as the lead agency vested with exclusive authority to approve or disapprove proposed budgets for Site cleanup activities following consultation with the non-lead agencies (which include the State of Florida) where a non-lead agency has requested such consultation.5
You relate that you would be responsible for managing the cleanup efforts at the Site on behalf of the Trustee and the corporation. Your prospective job responsibilities would include the implementation of all environmental actions approved by the USEPA, in consultation with the FDEP when requested; the procurement and oversite of all consultants and contractors retained by the Trustee for performance of environmental cleanup actions; the management of project controls involving the Site; and the facilitation of communications between the Trustee and the USEPA (as the lead agency for the Site) and, to a lesser extent, between the Trustee and FDEP (as a non-lead agency for the Site).6
Thus, you inquire with particularity how the post-public-employment restrictions of Sections 112.313(9)(a)4 and 112.3185(3) and (4), Florida Statutes, would apply to you, given your public employment history.
The Code of Ethics for Public Officers and Employees provides in relevant part:
An agency employee may not, 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 in which the agency employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an officer or employee. [Section 112.3185(3), Florida Statutes.]
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), Florida Statutes.]
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.]
'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 112.3185(3), restricts a former state employee from working for a private employer in connection with a contract, if the employee had a personal and substantial role in the development or procurement of the contract. Given your representation that your current job responsibilities as Program Administrator for WCP do not require that you engage in any contract procurement or development activities, we find that you are not subject to the restriction of Section 112.3185(3).
In order for a former employee to be restricted by Section 112.3185(4), he or she must work privately, within two years of leaving State employment, in connection with a particular contract for contractual services, which was "within his or her responsibility," or that of his or her government agency subordinates, while a public employee. In light of your representation that there are no FDEP contracts monitored or managed by you or your subordinate staff which pertain to or involve either the Trustee or the corporation, we find that you are not subject to the restriction of Section 112.3185(4).
Also relevant to your inquiry is Section 112.313(9)(a)4, Florida Statutes, which prohibits a former agency employee, as that term is defined at Section 112.313(9)(a)2.a., Florida Statutes, from representing another person or entity for compensation before the agency with which he or she was employed for a period of two years following vacation of his or her position. As the term "employee" is defined as including a member of the SES, you are an "employee" for purposes of this provision. Moreover, you are contemplating prospective employment as a Trust Site Manager for compensation, the corporation (which would employ you) is a person or entity other than yourself, and several of your proposed activities for your prospective employer meet the definition of "represent" or "representation" (defined above). Thus, the primary matter at issue is the determination of your "agency" for the purposes of the two-year representation prohibition.
The Commission previously has found that the prohibition on representation in Section 112.313(9)(a)4, Florida Statutes, refers to an employee's "agency" as the lowest departmental unit within which the employee's influence might reasonably be considered to extend. See, e.g., CEO 11-10 and CEO 12-22. Pursuant to responses to staff inquiries you state that although your position as Program Administrator of the WCP requires that you on occasion participate in communications, teleconferences, and meetings which have in part involved staff of the respective District Offices, you did not coordinate or organize any such teleconferences or meetings nor did you have any authority to act as a liaison on behalf of any District Office. Moreover, you state that you have no supervisory authority over, nor any responsibilities regarding, any personnel or activities performed by any District Office, including the Northeast District Office. Your "agency" therefore, is limited to the WCP and does not include the District Offices or other programs. In light of the employment history you present, we find that you are prohibited from "representation"7 as to the WCP and its personnel, but not as to other FDEP programs or District Offices. This finding is in accord with our prior decision (CEO 11-24), in which we determined that the "agency" of a former employee of the Department of Children and Families (DCF) was DCF's Substance Abuse and Mental Health Program Office.
Accordingly, we find that you would be prohibited by Section 112.313(9)(a)4, Florida Statutes, for two years after leaving your FDEP employment, from representation as to FDEP's WCP, but not prohibited as to any FDEP District Office or parts of FDEP other than WCP.
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on December 9, 2016, and RENDERED this 14th day of December, 2016.
Matthew F. Carlucci, Chair
Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.
See 42 U.S.C. §§9601-9675.
Article V of the Settlement Agreement provides in pertinent part that Trustee was established "for the purposes of owning the Multistate Owned Sites, carrying out administrative and property management functions related to the Multistate Owned Sites, managing and/or funding implementation of future Environmental Actions approved by the Lead Agencies . . . paying certain future oversight costs, and ultimately selling, transferring, or otherwise disposing or facilitating the reuse of all or part of the Multistate Trust Assets, if possible, and fulfilling other obligations as set forth in the Settlement Agreement."
See paragraph 12 of the Settlement Agreement.
In your letter of inquiry, you state that under the Settlement Agreement, which is signed in part by the State of Florida (among other governmental entities), if employed by the corporation to serve as Trust Site Manager you would be a "Multistate Trust Party" which owes a fiduciary duty of loyalty, disclosure, good faith, and prioritization of Florida's interests over your own personal and professional interests. Because of this court-mandated ethical alignment with the interests of Florida you argue that your post-employment communications and actions on behalf of the Trustee and/or the corporation should not be fettered by the post-public employment restrictions contained in the Code of Ethics for Public Officers and Employees as there would be no potential for any conflict of interest to occur nor for the exercise of undue influence to the benefit of the Trustee or the corporation.
The Commission has found that "representation" does not include some types of contact necessary to merely carry out a matter, such as a contract, involving one's former public agency, provided the contact is not for the purpose of trying to get the agency to do or not do something. See CEO 09-5; 11-24 (footnote 10); 12-04 (footnote 6); 12-22; and 14-001. Thus, we find that whether, as stated in your inquiry, you may "draft and submit correspondence on which FDEP might from time to time be copied" depends on whether the contact with your former agency is or is not for the purpose of trying to get your former agency to do or not do something.