CEO 93-2 -- January 28, 1993
CONFLICT OF INTEREST
FORMER DOT EMPLOYEE WORKING FOR TRAFFIC
ENGINEERING CONSULTING FIRM CONTRACTING WITH DOT
To: Stephen D. Moon, C.P.A., Public Transportation Specialist III, Office of Florida Turnpike, Department of Transportation (Tallahassee)
The Code of Ethics would not prohibit a Public Transportation Specialist with the Office of Florida Turnpike, Department of Transportation, from leaving public employment for employment with a consulting firm that has been awarded a five-year traffic engineering contract with the Florida Turnpike. Under the circumstances presented, the employee did not participate personally and substantially in the award of the contract, and the contract also is not within his responsibility. Therefore, Section 112.3185(3) and (4) do not apply. Section 112.3185(5) is not applicable because the employee would not be contracting with DOT to provide services to that agency.
Would the Code of Ethics for Public Officers and Employees be violated were you, a Public Transportation Specialist with the Office of Florida Turnpike, Department of Transportation, to leave public employment for employment with a consulting firm that has been awarded a five-year traffic engineering contract with the Florida Turnpike?
Under the circumstances presented, your question is answered in the negative.
Through your letter of inquiry and a telephone conversation with our staff, we are advised that for over eleven years you have been employed by the Department of Transportation (DOT), serving in various capacities. For approximately the past year and a half, you have served as a Public Transportation Specialist III with the Office of the Florida Turnpike.
In that position, your normal duties involve elements of the planning process for the Florida Turnpike. However, during the last year, your duties have focused on resolving the outstanding legal cases that the Turnpike inherited when it acquired the Sawgrass Expressway, which has involved negotiating with various State and local agencies and various defendants in the case.
You question whether you may resign your position with the Department to become employed by a consulting firm that has served as the Turnpike's Traffic Engineer for many years and that last year was awarded a five-year traffic engineering contract. As an employee of the firm, your anticipated duties could involve working not only on the Florida Turnpike contract, but also on firm projects in other states and countries. Your duties under the Turnpike contract could include working on the annual and quarterly traffic engineer's reports, coordinating traffic and earnings reports for bond sales, doing maintenance and operations calculations, handling special studies, and any other assignment that Turnpike management would make through the contract. You advise that these would be new duties for you, but that some of the duties you now perform for the Turnpike regarding the Sawgrass Expressway also could be involved.
The Code of Ethics for Public Officers and Employees provides in relevant part:
No agency employee shall, 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.]
No agency employee shall, within 2 years of 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 responsibility while an employee. [Section 112.3185(4), Florida Statutes.]
The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state. [Section 112.3185(5), Florida Statutes.]
The first of these provisions prohibits you from leaving DOT for employment with a business entity that has contracted with your agency if that employment is in connection with that contract and if you participated personally and substantially in the procurement or development of the contract. See CEO 83-8. You have advised that you did not serve on either the evaluation team or the selection team for the five-year traffic engineering contract, and that you played absolutely no role through decision, approval, disapproval, disapproval, recommendation, rendering of advice, or investigation in connection with the award of the contract. Under these circumstances, it is clear that you are not prohibited by Section 112.3185(3) from leaving DOT to work for the consulting firm.
Section 112.3185(4) prohibits you from going to work for the consulting firm in connection with the traffic engineering contract if that contract was "for contractual services" and if the contract was "within your responsibility" while a DOT employee. It appears that the contract is one for "contractual services," as that term is defined in Section 287.012(7), Florida Statutes. However, under the circumstances presented, we do not find that the contract is "within your responsibility" in your present position. We previously have concluded that a contract would be within one's responsibility where one's duties involved monitoring the services provided under the contract, including such tasks as comparing program policies, procedures, and client records with agency requirements and certification for insurance payments. See CEO 83-8. On the other hand, we also have found that incidental contact with the contractor as part of one's public duties does not make the contract within the employee's "responsibility." See CEO 87-8 and CEO 85-57.
You advise that the responsibility for the contract rests with the Turnpike Director, the Contracts Administrator, and the Turnpike Planning Director, who is your supervisor and who is the operational contract manager. Your supervisor makes assignments to the firm, approves their work and approves their invoices for payment. You advise that, on occasion, you and other Turnpike employees have reviewed drafts of reports prepared by the firm and made corrections or changes necessary to ensure the accuracy of the information contained in the draft. In addition, you advise, after your supervisor has ordered work from the firm and approved its invoices, you distribute or file the invoices and firm reports as required. Under these circumstances, we conclude that the firm's contract with the Florida Turnpike is not within your responsibility and, therefore, that Section 112.3185(4) does not prohibit you from leaving DOT to go to work for the firm.
The third provision above, Section 112.3185(5), limits the amount of money that can be paid to you by DOT for contractual services provided by you to DOT within the first year after you leave employment there. We are of the view that this provision is inapplicable to the employment you propose with the consulting firm and would not limit the amount of money that could be paid to the firm for services rendered by you to the firm in connection with DOT business. First, the statute only limits the sum of money "paid to a former agency employee . . . by the agency," language that does not directly apply where the employee leaves public employment to work for a business entity under a contract in existence before the employee resigns--that is the type of situation addressed in Section 112.3185(3) and (4). Secondly, the history of the provision indicates that it was intended to apply only to situations where the employee contracts with the former agency:
Former agency employees who contract with the agency for whom they worked could not receive more pay in the first year after leaving the agency than their yearly salary at the time they left the agency. [Senate Staff Analysis and Economic Impact Statement for SB 387, which became Ch. 82-196, Laws of Florida.]
Although Section 112.3185(5) may be applicable where a fraudulent or "straw man" contract is set up in an attempt to circumvent the prohibition, that clearly is not the case here. Therefore, we conclude that Section 112.3185(5) would not be violated under the circumstances presented.
Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you, a Public Transportation Specialist with the Office of Florida Turnpike, Department of Transportation, from leaving public employment for employment with a consulting firm that has been awarded a five-year traffic engineering contract with the Florida Turnpike.