CEO 00-9 -- June 6, 2000
POSTEMPLOYMENT RESTRICTIONS
FORMER DEPARTMENT OF ENVIRONMENTAL PROTECTION CAREER
SERVICE WORKER ASSISTING APPLICANTS FOR PROPRIETARY AUTHORIZATIONS INVOLVING STATE LANDS
To: Name withheld at person=s request (Tallahassee)
SUMMARY:
A former holder of a DEP Career Service position is not a former Aemployee@ subject to the postemployment restriction of Section 112.313(9)(a)4., Florida Statutes, because she was not a member of the Senior Management Service, the Selected Exempt Service, or in a position having the power normally conferred upon the Senior Management Service or the Selected Exempt Service. Because the situation does not involve public entity purchases of contractual services or other items, Sections 112.3185(3) and (4), Florida Statutes, would not be violated. CEO=s 95-22, 93-14, 88-32, and 86-69 are referenced.
QUESTION 1:
Are you, a former Career Service worker of the Department of Environmental Protection, Division of State Lands, Bureau of Public Land Administration, subject to the two-year Arevolving-door@ post-employment restriction on personally representing persons or entities before one=s former public agency?
Your question is answered in the negative.
By your written inquiry, correspondence from you to our staff, and a telephone conversation between you and our staff, we are advised that you recently vacated public service as an operations and management consultant manager within the Department of Environmental Protection, Division of State Lands, Bureau of Public Land Administration, a Career Service position. In this position, you advise, you possessed delegated authority to approve and/or deny the assignment of submerged land leases, subleases, easements, use agreements, and management agreements, when original conditions of issuance remained unchanged; to approve and/or deny the issuance of submerged land leases for the conversion of licensed structures, registered grandfathered structures, and unregistered grandfathered structures; to approve and/or deny issuance or renewal of submerged land leases, easements, use agreements, and management agreements; to approve and/or deny modification of submerged land leases, provided the modification represented merely technical changes as originally approved, did not increase the number of wetslips, and did not change the general use of the site as originally approved; to approve and/or deny the issuance or modification of submerged land public easements; to approve and/or deny modification of submerged land private easements, provided the modification represented merely technical changes from the project as originally approved and did not change the general use of the site; to approve and/or deny issuance, modification, and renewal of submerged land use agreements; and to approve and/or deny the issuance or modification of existing submerged land management agreements. In addition, you advise that another of your responsibilities was to oversee the development of proprietary authorization in the form of leases, easements, use agreements, and management agreements for the use of State-owned submerged lands, provided such uses had been approved by the BOT[1] or through delegated authority granted to an individual district office (DEP or WMD)[2] or granted to you via the Bureau.[3]
Therefore, you inquire as to whether your creation of a business that assists applicants before the DEP and/or the BOT in obtaining initial proprietary authorizations, modifications, and/or renewals for the use of State-owned submerged lands and your concomitant representation of applicants would violate Section 112.313(9)(a)4., Florida Statutes, which provides, with emphasis supplied:
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.
Sub-subparagraph (9)(a)2.a. of the statute defines Aemployee@ to mean
(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.
Inasmuch as you have represented to us that you were a Career Service employee while at DEP, a service or category of State employment separate and distinct from the Senior Management Service or the Selected Exempt Service, we find that you are not subject to the relevant proscription of the statute under the definition of Aemployee@ contained in Section 112.313(9)(a)2.a.(I). See CEO 93-14.
Further, we do not find that you had in your former position the power normally conferred upon Senior Management or Selected Exempt employees such that you would be an Aemployee@ under Section 112.313(9)(a)2.a.(VI). Whatever the totality of Athe power normally conferred upon@ a Senior Management or Selected Employee may be, we believe it to be more than that limited power, exercisable in fixed circumstances, delegated to you regarding some aspects of submerged land utilization. We believe that the intent of the prohibition is not to prevent subordinates who had a public agency role regarding a certain subject matter (e.g., a DEP Career Service employee such as yourself) from representing clients before their former public agencies, but, rather, that the intent of the prohibition is the prevention of influence peddling while in office and the prevention of post-officeholding exercise of undue influence by holders of high (e.g., Senior Management and Selected Exempt) public positions.
Accordingly, we find that you, a former Career Service employee of the Department of Environmental Protection, are not subject to the two-year prohibition, under Section 112.313(9)(a)4., Florida Statutes, against personally representing persons or entities for compensation before the DEP, the BOT, or other public agencies.
QUESTION 2:
Does Section 112.3185(3) or Section 112.3185(4), Florida Statutes, prohibit you from working for private applicants who seek to obtain, modify, or renew authorizations for use of State-owned submerged lands or who seek to purchase or lease State-owned lands?
This question also is answered in the negative.
The relevant statutes provide:
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 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.]
We find that Section 112.3185(4), a two-year ban on postemployment activity, is clearly inapplicable to you inasmuch as there is no indication that your private work would be in conjunction with any contract for Acontractual services@[4] which was within your responsibility while a DEP employee.
In addition, we find that the postemployment ban, unlimited in duration, of Section 112.3185(4) is inapplicable to you. While this provision=s phrase Ain connection with any contract@ does have a superficial relevancy to proprietary authorizations, sales, leases, and the other matters involving State-owned lands to which you refer, our interpretation of this provision clearly establishes that it deals with public agencies= procurement of items from private entities, rather than the reverse. See, for example, CEO 95-22 (AHCA, provider of managed care services), CEO 86-69 (GFC, A. . . to work for a contractor . . .@), and CEO 88-32 (land acquisition by the State).
This question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 1, 2000 and RENDERED this 6th day of June, 2000.
__________________________
Peter M. Dunbar
Chair
[1] Board of Trustees of the Internal Improvement Trust Fund of the State of Florida.
[2] Department of Environmental Protection or Water Management District.
[3] By telephone you advised our staff that none of the persons or entities you will represent will be providing Acontractual services@ or other items to the DEP, BOT, or WMDs.
[4] Defined in Chapter 287, Florida Statutes.