CEO 86-21 -- February 20, 1986

CONFLICT OF INTEREST

FORMER ATTORNEY FOR DEPARTMENT OF TRANSPORTATION CONTRACTING WITH DEPARTMENT TO PROVIDE LEGAL SERVICES

To: (Name withheld at the person's request.)

SUMMARY:

The Code of Ethics for Public Officers and Employees would not prohibit a staff attorney with the Department of Transportation from contracting with the Department after leaving State employment to handle litigation cases for the Department. The post-employment restrictions of Section 112.3185, Florida Statutes, generally apply only to "contractual services," a term which is defined not to include legal services. In addition, the attorney's current duties do not involve department contracts with private attorneys.

QUESTION:

Would the Code of Ethics for Public Officers and Employees be violated were you, a staff attorney with the Department of Transportation, to contract with the Department after leaving State employment to handle litigation cases for the Department?

Your question is answered in the negative.

In your letter of inquiry you advise that you are a Staff Attorney with the Department of Transportation and that you have been handling trial work for the Department. You also advise that you have resigned your employment, with your resignation effective in about one month.

Due to the current case load of the Department, it is possible that the Department may employ some private attorneys to handle certain cases. In addition, the Department currently and regularly bids out some cases to private attorneys. Your duties as a Staff Attorney involve handling specific cases assigned to you, but do not have anything to do with private attorney contracts, such as selecting private fee attorneys or preparing contracts for private attorneys.

You question whether after leaving your employment with the Department you may contract as a private attorney to handle Department cases either on a bidding or nonbidding basis. In addition, you question whether you may handle any case to which you previously were assigned as an employee of the Department.

Section 112.3185, Florida Statutes, contains the only post- employment limitations within the Code of Ethics for Public Officers and Employees. Section 112.3185(4) prohibits a State employee within two years after leaving employment with the State from being employed by a business entity in connection with any contract for contractual services which was within his responsibility while an employee. Section 112.3185(5) limits the amount of money a former State employee can receive for contractual services provided to his former agency. Neither of these provisions would be applicable to your situation as they apply only to "contractual services", as defined in Section 287.012(4), Florida Statutes. That definition specifically exempts legal services from its scope.

Section 112.3185(3), Florida Statutes, however, is not limited to contracts for "contractual services." This subsection provides:

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.

In order for this provision to apply, the former employee's new work must be "in connection" with some contract in which he participated while with the agency (see CEO 83-8), and his participation also must have been personal, substantial, and of the nature specifically designated in the subsection (see CEO 84-30). As you have advised that your current duties do not involve Department contracts with private attorneys, it is apparent that this provision also would not prohibit you from contracting with the Department after leaving your employment.

There is no provision in the Code of Ethics which directly addresses your contracting to handle cases to which you previously were assigned during your employment with the Department. However, Section 112.313(6) and (8), Florida Statutes, would prohibit you from misusing your present position or using information not available to the general public in order to obtain a contract with the Department. We suggest that you contact The Florida Bar regarding the applicability of the Code of Professional Responsibility in this situation.

Accordingly, we find that the Code of Ethics would not prohibit you from contracting with the Department of Transportation after leaving your current employment with the Department to provide legal services for the Department.