CEO 00-6 -- March 10, 2000

POST-EMPLOYMENT RESTRICTIONS

FORMER GOVERNOR'S OFFICE AND DEPARTMENT OF TRANSPORTATION EMPLOYEE REPRESENTING CONSORTIUM OF PUBLIC AND PRIVATE ENTITIES BEFORE GOVERNOR'S OFFICE, LEGISLATURE, AND DEPARTMENT IN CONNECTION WITH STUDY GRANT

Neither Section 112.3185(3) nor Section 112.3185(4) prohibits the employee from accepting employment with the Consortium for purposes of implementing the study grant following his vacation of his position with FDOT. Neither Section 112.3185(3) nor Section 112.3185(4) have any application to his employment with the Governor's office because his employment was not in connection with a contract in which he participated personally or substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation, or which was within his responsibilities while he was employed by the Governor's Office. Section 112.3185(4) also will not be applicable to his new employment because, upon terminating his employment with the FDOT and accepting the Executive Director position with the Consortium, the employee's new employment will not be in connection with any contract for "contractual services" which was within his responsibility while he was an FDOT employee inasmuch as the grant was not in existence while he was employed with FDOT. Furthermore, although the employee participated "personally" in the first phase of the Fast Track Grant process while he was employed by the FDOT, his participation was not "substantial." His involvement was not of much significance in the Selection Committee's recommendation of the Consortium's proposal to the FDOT Secretary or in the recommendation of the FDOT Secretary or the Governor's Office and will not be of much significance in the Legislature's approval of the project. The employee's role in the process appears to have been limited to acting as a facilitator, at most, in the first phase in the process.

Are you, an employee of the Department of Transportation and a former employee of the Governor's office, prohibited from leaving the Department for employment as the Executive Director of a consortium of public and private entities and representing the Consortium before the Governor's Office, the Legislature, or the Department of Transportation, or working with the Department to implement a study grant received from the Department within two years of vacating your employment with the Governor's office and the Department?

Your question is answered in the negative, subject to the limitations noted below.

In your letter of inquiry, you advise that you became employed in the Executive Office of the Governor ("EOG") in January 1999 in a professional staff category referred to as "Pay Plan 7," which technically ranks below a "Selected Exempt Service" ("SES") position, as that term is defined at Section 110.602, Florida Statutes, and a "Senior Management Service" ("SMS") position, as that term is defined at Section 110.402, Florida Statutes, although your continued employment still was at the pleasure of the Governor. Then, on September 1, 1999, you write, you became employed in an SES position with the Florida Department of Transportation ("FDOT"), a position that you continue to hold today. This is the second time that you have been employed in an SES position, you write. You advise that you were employed in a SES position as Assistant Secretary of Commerce from about January 1987 through May 1988.

We are further advised that you now are considering an offer to leave your employment with the FDOT to become employed as the Executive Director of a private consortium comprised of a number of "major" private businesses, a chamber of commerce, a regional economic development commission, and a "major" public airport authority. Although the membership of the Consortium will be predominantly private, you write, it likely also will include one or more State universities, one or more private universities, one or more seaport authorities, an additional airport authority, and possibly other "economic development/transportation groups," both public and private.

The Consortium, you advise, essentially was formed to apply for funding to study the feasibility of a cross-State rail system through a "major" central Florida transportation corridor. The application, you write, was submitted to the FDOT's Fast Track Program on November 1, 1999, while you were employed by the FDOT. It proposed that the study be funded by both a minimum $100,000 in private funds and $900,000 of FDOT Fast Track funds. The FDOT Fast Track Funds, you advise, must be approved by the Legislature as the fourth and final step in the Fast Track Grant program.

You advise that among your duties during your employment with the Governor's Office was development of the FDOT Fast Track Grant program. You relate that during this process you interacted continually with the FDOT Secretary. Thereafter, you accepted employment with FDOT in order to implement and manage the program.

You write that there are four steps in the Fast Track Grant process. They are: (1) review of the applications by a Fast Track Selection Committee for purposes of recommending to the FDOT Secretary the projects that should be funded by the Program; (2) a "personal" and independent review by the FDOT Secretary of the applications for purposes of recommending to the Governor the projects that the Secretary believes, based on his own judgment and information obtained from outside the Fast Track office, should be funded by the Legislature; (3) review by the Governor and his Executive Office of the Governor ("EOG") policy and budget staff of the applications and recommendations of the Fast Track Selection Committee and the FDOT Secretary for purposes of making funding recommendations to the Legislature^[1] ; and (4) review and final approval by the Legislature of the projects that ultimately will be funded through the Fast Track Program. You write that the first three steps have been completed.

You also write that because you were responsible for managing and implementing the Fast Track Grant Program, including providing administrative support to the Fast Track Selection Committee, you were actively involved in Step #1 of the Fast Track process. However, you advise that you did not serve on the Program's Selection Committee and that you had no voting authority or ex-officio status on the Committee. The Selection Committee, you write, was a strong and independent-minded five-person group led by senior executives of CSX Intermodal, the Jacksonville Port Authority, the Metropolitan Planning Organization Advisory Council, and representatives of the Governor's Office and the FDOT Secretary, which took its work seriously despite having 174 proposals to evaluate and make recommendations on within 18 days of receipt of each application.

In addition to staff review of the applications, you advise, each Selection Committee member read every grant application relative to the mode of transportation within his or her expertise, and, when members had expertise in more than one transportation mode, they reviewed those applications related to that transportation mode, as well. You advise that you supported the Selection Committee by leading discussions, responding to requests about the basic intent and criteria specified by the Governor and Secretary for selecting grant proposals, researching project-specific inquiries, handling logistics, documenting the process, and handling calls from the press, the applicants, and the public.

Staff review of the grant applications also was led by you, you write. You advise that you divided the transportation modes and a special "other" category among your small staff. One professional took primary responsibility for rail, seaport, and airport proposals, another took primary responsibility for "transit and intermodal," and you took the lead on space and on the 54 gray-area applications, which were either ineligible or questionably eligible for grants, and ensured that they received "reasonable" consideration. You write that you also reviewed selected "modal" applications in the other transportation modes when they were unusually innovative, extremely complex, or if they genuinely had statewide or "super-regional" impact. However, you advise that you did not have the lead on rail mode projects, although you read the Consortium's proposal because it was innovative and one of a handful of projects that had more than a local impact.

You write that you were involved with the Consortium's Cross-State Rail Study application in two ways. First, because of the policy debate among the Selection Committee members regarding whether to recommend only construction projects that were already designed and ready to go to construction and exclude any study-type projects which were only in the first phases of what eventually might become "real" projects, you advise, you continually reminded the Committee of the Governor's "vision" for the Program: that it stir up some competitive and creative "juices" that will result in innovative solutions to problems impacting Florida's economic competitiveness, Florida's most critical industries (e.g., space, tourism, defense, high technology, etc.), and the freight business. You relate that you illustrated your points by referencing several proposals, including the Consortium's proposal. Secondly, you advise that you spoke, answered questions, and provided a "range" of comments on many projects, including the Consortium's proposed project. However, you relate that you did not emphasize any one of the proposals more than the others and, in discussing the projects with the Selection Committee, you did not recommend one project over another. Sometimes the Committee listened to you, you write, but often they did not.

We are advised that on November 18, 1999 the Selection Committee made its decisions, all unanimous, on which projects to recommend to the FDOT Secretary. Among the 29 recommended projects, you write, the Consortium with which you are considering becoming associated was recommended by the Committee for a $900,000 grant matched by a minimum of $100,000 in local share funds donated by members of the Consortium.

In Step #2, the FDOT Secretary conducted a personal review of all of the recommended proposals. As part of his review process, and to ensure maximum objectivity, you write, the FDOT Secretary essentially built a "firewall" between himself and the FDOT Fast Track office. He relied instead on information requested of the FDOT Districts and on his own judgment of how each project fit within FDOT's overall plans for the future and on whether each was consistent with FDOT policies and philosophy. You advise that your role was limited to a single response to a request that the Secretary also made to the Aviation, Rail, Transit and Seaport/Intermodal managers in FDOT. That request was to propose alternative projects in the event that he did not accept one or more of the Selection Committee's recommendations.

Because the Consortium's proposal was under review, your recommendations on alternative proposals are irrelevant to the issues that we are being requested to opine on, you advise. We are advised that the Secretary deleted six (6) projects from the original 29 that were recommended and added four (4) alternative projects. You advise that he made no changes or adjustments to the Consortium's grant proposal.

In Step #3, during early January 2000, the Governor and his EOG staff reviewed and approved the Secretary's recommendations. The projects were announced as part the Governor's budget recommendations to the Legislature on January 18, 2000. You advise that you had no role and provided no input during the third step of the Fast Track process.

We are advised that the Fast Track program now has entered the fourth step of the process, that is, the Legislature's review of the FDOT Work Program and the Governor's budget requests, in which the Fast Track recommendations are contained, including the Consortium's proposal, which amounts to $900,000 out of the total $60,000,000 that the Governor is requesting. You write that you will have no role or responsibility in this step because the Secretary usually speaks for himself or relies on his Legislative Affairs staff to represent him before the Legislature. Furthermore, you believe that the Consortium's Board of Directors will lobby on its own behalf before the Legislature.

Relevant to your inquiry are the following provisions of the Code of Ethics for Public Officers and Employees, which provide as follows:

POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--
(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.
2. As used in this paragraph:
a. 'Employee' means:
(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.
. . . . .
(VI) Any person having the power normally conferred upon the positions referenced in this sub-subparagraph.
. . . . .
4. No agency employee shall 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.
5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct.
6. This paragraph is not applicable to:
a. A person employed by the Legislature or other agency prior to July 1, 1989;
b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;
c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;
d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or
e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. [E.S.]^[2] [Section 112.313(9)(a), Florida Statutes.]

CONTRACTUAL SERVICES.--
(1) For the purposes of this section:
(a) 'Contractual services' shall be defined as set forth in chapter 287.
(b) 'Agency' means any state officer, department, board, commission, or council of the executive or judicial branch of state government and includes the Public Service Commission.
. . . . .
(3) 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.
(4) 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 or her responsibility while an employee.
(5) The sum of money paid to a former agency employee during the first year after the cessation of his or her responsibilities, by the agency with whom he or she was employed, for contractual services provided to the agency, shall not exceed the annual salary received on the date of cessation of his or her 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, Florida Statutes.]

For purposes of Section 112.3185(4), "contractual services" is defined as set forth in Section 287.012(7), Florida Statutes, to mean

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, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports of findings of consultants engaged thereunder; and professional, technical, and social services. 'Contractual service' does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder. [E.S.]

Section 112.313(9)(a)4, Florida Statutes, prohibits agency "employees," as that term is defined at Section 112.313(9)(a)2, Florida Statutes, from representing another person or entity for compensation before the agency with which they were employed for a period of two years following vacation of their positions, unless their employment falls within the terms of an exemption contained in Section 112.313(9)(a)6, Florida Statutes. In CEO 94-20 ^[3], we concluded that the exemption in Section 112.313(9)(a)6 must relate to the employment that gives rise to the potential "revolving door" prohibition, with the result that a person who began employment with an agency after July 1, 1989 would not be exempt from the two-year prohibition after leaving employment with that agency, regardless of whether the person had been employed with another agency prior to or on July 1, 1989 or had some earlier period of employment with the same agency that ended prior to or on July 1, 1989. We wrote:

To interpret the language of the exemption provision to be applicable to any person employed in any capacity by the Legislature or any agency^[4] prior to July 1, 1989, regardless of whether there is any relationship between that employment and the subsequent "high ranking" employment, would base the exemption on fortuitous circumstances and possibly exempt out more persons than are subject to the prohibition.

Then, in CEO 94-34, we interpreted the 1994 amendments to Section 112.313(9)(a)6 to permit an employee who was not in a defined position on July 1, 1989, for example, a SES or a SMS position, but who was otherwise employed by an agency on that date, to later accept a defined position with that agency after July 1, 1989 and continue to be exempt upon leaving the defined position. This is in contrast to the situation presented in CEO 94-20, where we refused to conclude that any public employment prior to July 1, 1989 amounted to a lifetime exemption from the post-employment restrictions of Section 112.313(9) and instead linked the exemption in Section 112.313(9)(a)6 to the employment that gave rise to the potential "revolving door" prohibition. See also CEO 00-1.

Because you were neither in an SMS nor SES position, nor in a position having the power normally conferred upon such position while you were employed by the Governor's Office, and because you never were employed by the Legislature, we are of the opinion that Section 112.313(9)(a)4 would not apply to prohibit you from representing the Coalition before either the Governor's Office or the Legislature for a period of two years following your vacating your current position with the FDOT.

However, if you accept employment with the Coalition, it does appear to us that the two year prohibition of Section 112.313(9)(a)4 may apply under certain circumstances to prohibit you from representing the Coalition before the FDOT. Despite the fact that you were in an SES position while you were employed with the Department of Commerce prior to May 1988, your Department of Commerce employment does not relate to your employment as an SES employee with the FDOT which now gives rise to the potential "revolving door" prohibition. Consequently, because you became employed by the FDOT after July 1, 1989, we are of the opinion that you are not exempt from the two-year prohibition after leaving employment with the FDOT.

However, you have indicated that you are contemplating becoming either an employee of the Consortium, or one of the its members which includes several public agencies, or an independent contractor to the Consortium.^[5] In any of these capacities, you write, your primary responsibility will be to implement and carry out the Cross-State Rail Study grant by, among other things, communicating by telephone, mail, and in person with the FDOT regarding that agency's own studies, "efforts," research, and input into, feedback concerning, and critiques of, the Consortium's work. For example, you indicate that you would cooperate with the FDOT regarding an on-going State-Amtrak Inter-City Rail Study; you would use previous research data compiled by and reports prepared by FDOT and/or its consultants, if appropriate; and you would interact with the FDOT relative to other related studies and "active proposals." Assuming that you are hired by the Consortium and it receives funding to do the proposed study, we must determine whether and to what extent you can communicate with FDOT on behalf of the Consortium (your new employer), that is, whether the activities that you contemplate undertaking with the FDOT to implement and carry out the grant on behalf of the Consortium constitutes "representation" of the Consortium, as that term is defined at Section 112.312(22), Florida Statutes.^[6] In two opinions, CEO 91-49 (which concerned a former public employee) and CEO 92-3 (which concerned a former legislator), we addressed the question of what conduct constituted "representation" for purposes of both Article II, Section 8(e), Florida Constitution, and Section 112.313(9) (a)3 and 4, Florida Statutes.

In CEO 91-49, we found that Section 112.3141(1)(d), Florida Statutes (now Section 112.313(9)(a)4), did not prohibit a former Senior Attorney with the Governor's Office who had been assigned to work as counsel to the Administration Commission from mediating cases pending before the Administration Commission within 2 years of vacating his former position. As a former SES employee, we wrote, Section 112.3141(1)(d) would apply to him. However, because acting as a mediator or as a neutral third party is not the same as "representing" [as that term is defined at Section 112.312(22), Florida Statutes] a party before a former employing agency, he was not prohibited by the Code of Ethics from acting as a mediator in such cases. As a mediator, we wrote, the former Senior Attorney would be attempting to facilitate an agreement that could be presented to the Administration Commission, his former agency, for final action rather than "representing" a person or entity. For the same reason, we found that he also would not be prohibited from acting as a mediator in disputes pending before the Florida Land and Water Adjudicatory Commission or in cases in which the Department of Community Affairs was a party.

We also concluded that, in other contexts, the determination of whether the former Senior Attorney could represent a client before his former employing agency did not depend on whether his proposed action was "advocacy" or "non-advocacy," but on whether the action required by the agency was a routine, ministerial function, leaving the agency with no discretion to take any action which might benefit his client. If there was no discretion left in the agency, we opined, then the action was permitted; if not, then it was prohibited.

Thereafter, in CEO 92-3 we found that a former State Representative was prohibited from attending and monitoring legislative committee meetings or sessions and from asking questions about a proceeding or proposed legislation of a legislative staff member, even for informational purposes only, when done on behalf of another for compensation during the two years following his leaving office. There, we concluded that the term "represent" is defined at Section 112.312(22), Florida Statutes, to include physical attendance in an agency proceeding and personal communications with the officers or employees of an agency, who would be involved in attending and monitoring legislative committee meetings or sessions, and in asking questions about a proceeding or proposed legislation of a legislative staff member, even for informational purposes only. Although attending legislative meetings would not involve writing letters, filing documents, or personal communications with legislative personnel, we opined, the definition of "representation" also specifically includes "actual physical attendance on behalf of a client in an agency proceeding." Therefore, we concluded that attending and monitoring legislative meetings constituted actual physical attendance in a legislative proceeding.

While we recognized in CEO 92-3 that the phrase "in an agency proceeding" contemplates a degree of participation in the proceeding with an intent to influence the agency's action, as opposed to simply sitting as a member of the audience at a meeting or hearing in order to observe the proceedings, and that the phrase "at an agency proceeding" would have more clearly encompassed the action of observing the agency proceeding when that phrase was contrasted with the other two activities that comprise the definition, both of which expressly entail communicative actions, whether written or oral, we concluded that the Legislature's intent was not to prohibit only activities that involved a form of active communication from the former officeholder. If the Legislature's intent was to prohibit activities involving only active communications, we wrote, the definition's inclusion of "personal communications," "the writing of letters," and "the filing of documents" would have sufficed, and the addition of "actual physical attendance . . . in an agency proceeding" would have been unnecessary. Instead, we found that because the definition of "represent" or "representation" specifically mentions attendance as an additional form of representation, the Legislature must have intended to refer to action other than writing letters, filing documents, or personal communications because we could envision instances where actual physical attendance without any form of active personal communication could have the effect of representing the intentions or interests of another person or entity.

We responded to the second question in CEO 92-3 by concluding that the definition of "represent" or "representation" also prohibits a former legislator from asking legislative staff questions about a proceeding or proposed legislation for informational purposes only on behalf of another for compensation. We found that because a former legislator's asking questions of a legislative staff member would constitute personal communications with an employee of the former legislator's former agency, and because his questions would be on behalf of another, his actions would constitute representation of another before his former agency. While asking questions for informational purposes only may not necessarily involve any communication intended to influence legislative action, we concluded that Section 112.313(9)(a)3 appears to be a blanket prohibition designed to preclude a former agency official from being compensated for actions taken on behalf of another that involve his or her former agency. We noted that many questions asked in the guise of seeking "information" actually could be intended to communicate a client's position or to affect legislation.

Essentially, we have determined that the term "representation" encompasses such activities as making discovery requests, taking depositions, examining witnesses, filing documents with one's former agency or agency personnel, or engaging in personal communications with personnel of his or her former agency. See CEO 93-14. In contrast, we also have found that providing bona fide, good faith responses to requests for information on specific subjects by legislators, not having been solicited directly or indirectly by the former legislator, does not constitute "representation" for purposes of Section 112.313(9)(a)4. See CEO 90-4, Question 4.

Here, you indicate that, as Executive Director of the Consortium, you might be communicating with the FDOT in order to negotiate a Joint Partnership Agreement setting forth the responsibilities of both the Consortium and the FDOT under the grant prior to the Legislature's final approval of the study proposal. You also indicate that you would be communicating with the FDOT for purposes of implementing the grant.

With respect to your communicating, as the paid Executive Director of the Consortium, with the FDOT on behalf of the Consortium for purposes of negotiating an agreement, we find that because such communications necessarily would involve your attempting to influence the FDOT's decisions relative to the Consortium's implementation of the study grant, it falls within the blanket prohibition of Section 112.313(9)(a)4 and is prohibited. Similarly, any communication by you within two years of vacating your position with the FDOT, as a paid representative of the Consortium, for purposes of either extending the grant or developing a new project also would be prohibited by this provision. However, we find that a distinction can be made between the above types of communications, which are meant to influence the FDOT's decision-making, and the communications that you would have with the FDOT while the Consortium is implementing and fulfilling its responsibilities under the Study grant and negotiated agreement.

With respect to the latter type of communications, we are of the opinion that a strict and literal reading of Sections 112.313(9)(a)4 and 112.312(22) (the definition of "represent" or "representation") would have the unintended consequence of prohibiting former public officers and employees from becoming employed in connection with projects funded by their former agencies that they had no role in procuring and which were not within their responsibilities as employees of their agencies, where the agencies' decision-making regarding the responsibilities of the grantees under the grants had already been determined and the communications between the grantees and the agencies would relate solely to the implementation of the grants. Such restrictions, in our opinion, would be contrary to the intent of the Legislature as stated at Section 112.311(4), Florida Statutes, to implement the objectives of the Code of Ethics of protecting the integrity of government and of facilitating the recruitment and retention of qualified personnel by prescribing restrictions against conflicts of interest without creating unnecessary barriers to public service and, specifically, the Legislature's intent in enacting Section 112.313(9)(a)4 or preventing the appearance of impropriety by prohibiting public officers and employees from exploiting the special knowledge or influence gained from their public positions for private gain after leaving their public positions, and to restrict interactions between the former public officers and employees and their former colleagues. See CEO 95-14. By recognizing a distinction here, we accept the fact that there is a difference between communications with an agency that are intended to get the agency to do something for one's employer/client and the communications needed to fulfill a contract between one's employer/client and the former agency.

For purposes of the executive branch lobbyist registration law, we determined in Fla. Admin Code Rule 34-12.170(5) that advice or services communicated to an agency which arise out of an existing contractual obligation to the agency to render the particular advice or services provided do not constitute executive branch lobbying, requiring one to register as a lobbyist. Similarly, for purposes of Section 112.313(9)(a)4 we conclude that this kind of communication can be distinguished from that intended to be prohibited by Section 112.313(9)(a)4.

Accordingly, we find that were you to communicate with the FDOT as a paid representative of the Consortium after you terminate your employment with the FDOT regarding the Consortium's implementation of the grant and the negotiated agreement, no violation of Section 112.313(9)(a)4, Florida Statutes, would exist.

SECTION 112.3185(3) AND (4), FLORIDA STATUTES

Section 112.3185(3), Florida Statutes, restricts the employment that you may seek after leaving employment with the Governor's Office and the FDOT by prohibiting you from becoming employed by a business entity in connection with a contract in which you participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation. See CEO 83-8, in which we limited our interpretation of this list of activities to the procurement process. Similarly, Section 112.3185(4) prohibits you from becoming employed in a non-agency capacity in connection with any contract for contractual services which was within your responsibility as an employee during the two-year period following your vacating your position. During your first year after you terminate your employment with FDOT, Section 112.3185(5) also prohibits you from being paid for services provided to FDOT more than the annual salary that you received prior to your termination of your employment, which prohibition may be waived by the FDOT Secretary if he determines that such waiver will result in significant time or cost savings to the State.

In CEO 82-67, we noted that Section 112.3185(4) differs from Section 112.3185(3) in three ways. First, it is more limited as to the time period it governs--specifically, a two-year period following resignation or termination. Secondly, it is more general as to what activities of a former agency employee are prohibited. Thirdly, it applies only to contracts for contractual services. The subject of CEO 82-67 was a former District Grants Specialist for DHRS who was employed as a fiscal manager by a corporation which was under contract with the Department. We found that no prohibited conflict of interest existed because the former employee's private employment was not in connection with any contract in which he substantially participated while with the Department, and the former employee's private employment was not in connection with any contract for contractual services which was within his responsibility while a State employee.

Similarly, we find here that neither Section 112.3185(3) nor Section 112.3185(4) have any application to your employment with the Governor's office because your employment was not in connection with a contract in which you participated personally or substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation, or which was within your responsibilities while you were employed by the Governor's Office. You have indicated that your employment with the Governor's office was, among other things, in connection with the development of the FDOT Fast Track Grant program rather than in connection with any specific contract or grant application.

The question remains, however, whether, because of your employment and responsibilities with FDOT implementing and managing the Fast Track Grants Program, Sections 112.3185(3) and (4) prohibit you from accepting employment with the Consortium as its Executive Director. We have evaluated these statutory provisions in analogous situations in a number of our prior opinions. For example, in CEO 86-23, we opined that no prohibited conflict of interest would be created were a former Assistant Secretary for Programs of the Department of Corrections to provide technical consulting services as a member of a project team of a firm receiving a contract from the Department to provide medical inspections of county jail facilities. There, we determined that neither Section 112.3185(3) nor Section 112.3185(4) would apply as the employee had no responsibility in the development or award of the contract.

Again, in CEO 93-2, we opined that the Code of Ethics would not prohibit a Public Transportation Specialist with the Office of Florida Turnpike in the FDOT from leaving public employment for employment with a consulting firm that had been awarded a five-year traffic engineering contract with the Florida Turnpike. Under the circumstances presented, we found that the employee did not participate personally and substantially in the award of the contract, and the contract also was not within his responsibility. The Turnpike employee merely 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, after the employee's supervisor ordered work from the firm and approved its invoices, the employee distributed or filed the invoices and firm reports as required. Under these circumstances, we concluded, the firm's contract with the Florida Turnpike was not within the employee's responsibilities and, therefore, Section 112.3185(4) did not prohibit him from leaving the FDOT to go to work for the firm. We found that neither Section 112.3185(3) nor (4) applied under the circumstances.

We also opined in CEO 93-2 that Section 112.3185(5) was not applicable under the circumstances, because 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. Furthermore, the history of the provision indicated to us that it was intended to apply only to situations where the employee contracted directly with his or her former agency, which was not the situation presented to us. Similarly, we conclude that Section 112.3185(5) would not limit your compensation by the Consortium.

In CEO 95-19, we determined that the Code of Ethics permitted a medical/health care program analyst for the Agency for Health Care Administration ("AHCA") to leave her position for employment with a health management company which contracted with the State to provide managed care services for Medicaid recipients. Although as an AHCA employee the analyst reviewed the health care company's application to become a Medicaid HMO contractor by reviewing language in the application, comparing it with the required language and requesting supplementation when necessary, we found that her involvement in that review process was not so "substantial" that her employment would violate Section 112.3185(3).

Finally, in CEO 95-22 we opined that neither Section 112.3185(3) nor (4) prohibited a Human Services Program Supervisor II in the Area 3 Medicaid Office of the AHCA to leave her position for employment with an HMO which contracted with the State to provide managed care services for Medicaid recipients because she had no involvement in the procurement or development of the contract while she was employed with the AHCA and that the contract was not within her responsibility while an AHCA employee.

Here, we find that Section 112.3185(4) would not be applicable to your situation because, upon terminating your employment with the FDOT and accepting the Executive Director position with the Consortium, your employment will not be in connection with any contract for contractual services which was within your responsibility while you were an FDOT employee. While the grant might be considered to be a contract for "contractual services," as that term is defined at Section 287.012(7), Florida Statutes, it was not in existence while you were employed with FDOT. Therefore, the grant was not within your responsibility while you were an FDOT employee.

This leaves us with having to determine whether you are prohibited by Section 112.3185(3) from accepting employment with the Consortium to serve as its Executive Director in connection with the implementation of the study grant, a "contract," that will neither be in existence nor effect at the time that you terminate your FDOT employment. Although we have indicated that the non-existence of a contract for contractual services or the award of a contract after an employee terminates his or her employment with an agency would negate the existence of a possible Section 112.3185(4) violation, because the contract could not possibly be within an employee's responsibilities if it does not exist, we have not found this fact to be dispositive in applying Section 112.3185(3). See CEO 84-30 and CEO 88-32. Furthermore, we previously have advised that Section 112.3185(3) applies where one has participated in the procurement or development of a contract. See CEO 83-8. Consequently, we find that you would be prohibited by Section 112.3185(3) from accepting employment as the Executive Director of the Consortium in connection with the implementation of the study grant if we also find that your involvement with the procurement of the study grant was "personal" and "substantial," through decision, approval, disapproval, recommendation, rendering of advice, or investigation.

We observed in CEO 88-32 that the Federal law provides a similar limitation on former officers and employees of the executive branch of the United States Government. Under 18 U.S.C. Section 207(a), former officers or employees are prohibited from representing any person other than the United States before any agency of the United States in connection with any proceeding, contract, claim, or other particular matter involving a specific party "in which he participated personally and substantially as an officer or employee through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, while so employed . . . ." For purposes of implementing this prohibition, we observed, the Office of Personal Management Regulations explain:

To participate 'personally' means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. 'Substantially,' means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. [5 C.F.R. Section 737.5(d).]

Therefore, we concluded that these types of considerations require a detailed review of the employee's involvement with each particular project regarding which he or she seeks private employment.

Here, you were involved in the first step of the four step Fast Track Grant program process in the following ways:

1. By participating in the Fast Track Program's staff review of the grant applications; and

b. Responding to requests about the basic intent and criteria specified by the Governor and the FDOT Secretary for selecting grant proposals;

Essentially, you spoke, answered questions, and provided a "range" of comments on many projects, including the Consortium's proposed project, but you did not recommend the Consortium's proposal over any of the other projects. In reminding the Committee members of the Governor's "vision" for the program when making their recommendations, you also illustrated your points by referencing a number of proposals, including the Consortium's proposal. Your involvement in the second phase was limited to providing the FDOT Secretary with alternative recommendations to the Selection Committee's recommendations. This did not affect the Consortium's proposal since it was one of those that had been recommended by the Selection Committee for funding. You were not involved in the third phase and will not be involved in the fourth phase.

Although we find that you participated "personally" in the first phase of the process, we do not find that your participation was "substantial," that is, that it was of much significance in the Selection Committee's recommendation of the Consortium's proposal to the FDOT Secretary for funding or in that of the FDOT Secretary or the Governor's Office or in the Legislature's approval of the project (assuming that it is approved). Under the circumstances presented, it does not appear that you participated "substantially" through decision, approval, disapproval, recommendation, rendering of advice, or investigation in the procurement of the Consortium's proposed Cross-State Rail Study project, as it was the members of the Consortium, the Fast Track Selection Committee, the FDOT Secretary, the Governor's office, and the Legislature and its staff who have been and will be responsible for the award of the grant. Moreover, it appears that your role was limited to acting as a facilitator, at most, in the first phase in the process.

Accordingly, we are of the opinion that neither Section 112.3185(3) nor Section 112.3185(4) prohibits you from accepting employment with the Consortium as its Executive Director for purposes of implementing the Cross-State Rail Study grant, following your termination of your FDOT employment.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 2000 and RENDERED this 10th day of March, 2000.

^[1]The Governor's recommendation is reflected in his Legislative Budget Request.

^[2]This statute was adopted first in 1989, when it was codified as Section 112.3141(1), Florida Statutes (1989). Chapter 89-380, Laws of Florida, eff. July 1, 1989. In 1991, the statute was transferred to Section 112.313(9), Florida Statutes, by Chapter 91-85, Laws of Florida. Chapter 94-277, Laws of Florida (eff. Jan. 1, 1995), amended Sec. 112.313(9)(a) to include appointed state officers, SUS employees, and PSC employees. In addition, the 1994 amendments rewrote 112.313(9)(a)6 to add the categories that now appear as 6.b., 6.c., and 6.e.

^[3]CEO 94-20 was appealed to the First District Court of Appeal, which affirmed the opinion by a "Per Curiam Affirmed" decision, as Anderson v. Commission on Ethics, 651 So. 2d 1198 (Fla. 1st DCA 1995).

^[4]We note that the term "agency" is not defined in Sec. 112.313(9)(a), but is defined in Sec. 112.312(2), where it includes not only entities of State government, but also local government entities.

^[5]Section 112.313(9)(a)4 exempts from its prohibition your representation of the Consortium or one of its members before the FDOT if you are employed by another "agency of state government." In In re George Stuart, COE Final Order 94-01, 16 FALR 1499, 1504 (1994), we adopted the Administrative Law Judge's determination that there is no reason to differentiate between the term "state agency" and "agency of the State." Although the Legislature sometimes uses one phrase and sometimes the other, the ALJ reasoned, the courts and the Attorney General's opinions have used the terms interchangeably. Therefore, if you were to perform the same functions that you would be performing as an employee of the Consortium as an employee of one of the consortium members that is a State University or other State agency, the exemption may apply under the circumstances to negate the existence of the two-year prohibition.

^[6]For purposes of Section 112.313(9)(a)4, the terms "represent" or "representation" are defined at Section 112.312(22) to mean

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.