DOT contract poses no conflict, Simpson says
UPDATED WITH A CORRECTION: Senate general counsel George Levesque in an email Saturday said he didn't say that he relied on a 1985 Florida Commission on Ethics opinion before giving advice to Simpson. He said he spoke generically and was referencing other opinions. He did say that he relies on Florida Commission on Ethics advisory opinions to provide the interpretation of the law
When is a conflict not a conflict for a Florida lawmaker?
For Sen. Wilton Simpson, R-Trilby, it’s after he gets cleared by Senate legal counsel that no such conflict exists, even if it still, in all practical terms, remains.
Simpson, who reported his $15.6 million net worth last week, makes his money from an array of sources: an egg farm, Florida Traditions Bank and an environmental abatement company, which also employs House Speaker Will Weatherford as a $36,000-a-year consultant.
That company, Simpson Environmental Services, owns a 60 percent stake in SFB Turnpike Joint Venture, a trust that Simpson formed with two other contractors so they could compete for Florida Department of Transportation contracts.
In April 2011, SFB Turnpike Joint Venture won a contract with the DOT’s Turnpike Enterprises to provide asbestos removal, demolition, the capping of wells and underground utility work. Basically, it’s the joint venture’s job to knock down buildings and put up fences as the Turnpike and various other state toll roads expand. It’s for three years with a two-year renewal option. It’s lucrative, too, paying out about $1 million so far, Simpson said.
When the contract was signed, Simpson wasn’t an elected official. But three months before the contract was finalized, Simpson filed to run for the state senate. In 2012, he was “elected” to the District 18 seat after no one opposed him.
This posed a problem for him and the DOT contract.
Florida law prohibits state lawmakers, which now Simpson was, to “personally represent another person or entity for compensation during his or her term of office before any state agency.” The law intends to avoid situations in which lawmakers, who vote on agency budgets, have a financial relationship with those same agencies. It would be all too tempting, the thinking goes, to lean on agency officials to get contracts and favorable payments.
Although he’s not a lawyer, Simpson said he realized there was a potential conflict. So he sought the opinion of George Levesque, the Florida Senate’s legal counsel. Simpson said in a meeting between the two late last year, Levesque told him that as long as Simpson wasn’t “personally representing” the joint venture to the DOT, there wasn’t a problem.
Up until that point, Simpson said, his role in the contract was a remote one. He’d sign the contracts and the work orders, but that was about it, Simpson said.
“What we did was remove me from that loop,” Simpson said. “I’m not reviewing the work orders anymore. I’m not involved in the contract.”
So Simpson installed an employee, Tim Yeager, as a go-between to handle all contract matters with the DOT.
Simpson still controls the company that owns the majority stake in the joint venture, so how does he keep tabs on the contract?
Simpson said he gets updated periodically on the status. But that’s about it, he said.
What if something unexpected happens and he needs to intervene?
“If there was ever a red flag, surely they would bring it to my attention,” Simpson said.
That hasn’t happened yet, Simpson said. And he’s not worried about the possibility that it could, either.
Still, Simpson was asked if the precautions he took to avoid a conflict of interest are superficial, giving only the appearance that he has removed the conflict. Clearly, Simpson still has a direct business tie to an agency whose budget still falls under his powers as a senator.
“You could say that,” Simpson said. “But the reality is I don’t lose a minute’s sleep over the questions you’re asking because I don’t have anything to do with the contract.”
To his credit, Simpson has taken steps to get the clearance he’s needed, at least in the eyes of Florida’s loosey goosey ethics laws.
“He had done some research on his own by the time I spoke with him,” said Levesque, who confirmed that he told Simpson to remove himself from any direct contact with the DOT. His solution recognizes that Florida has a “citizen Legislature”. Lawmakers make a pittance -- about $29,000 a year -- so they need another job to make a living.
“Everyone elected to office has another job,” Levesque said. “Some are in the public sector, some are in the private sector. Members can’t use their business to extort state agencies, but we also don’t want to needlessly disqualify people, either.”
Levesque said he relied on the Florida Commission on Ethics to guide his counsel to Simpson. Several opinions have been written to allow lawmakers to do business with state agencies while in office. But the opinions rest on the premise that once cleared to do so, the lawmaker be free of any controversy. It doesn't always work out like that.
Take an opinion written in 1985, which the Commission on Ethics wrote for for Michael Langton, who was then a Democratic state representative from Jacksonville. Langton owned a public affairs consulting firm that wrote grant applications for municipal and county governments. The firm regularly applied for grants from state agencies, such as the Department of Community Affairs and Department of Natural Resources. The Commission on Ethics concluded his business didn’t pose a conflict because Langton himself would not have personal contact with the state agencies.
“We recognized that the firms of state legislators may do business with state agencies so long as the legislator does not personally represent the firm before the state agency,” the opinion stated.
Written 28 years ago, that opinion was based on previous opinions and still holds, said Virlindia Doss, executive director for the Florida Commission on Ethics.
“The commission has a long history of saying that prohibition is personal to that member and isn’t attributable to other members of his firm,” Doss said. (Note: Doss made clear that she can’t issue an opinion on Simpson’s situation. According to the very narrowly drawn law in Florida, the Commission weighs in only if someone lodges a formal complaint or Simpson himself asks for an opinion. Otherwise, the Commission stays out of it.)
Yet that particular Florida Commission on Ethics opinion hardly instills confidence. Blame what happened next.
In 1991, a Florida Commission on Ethics hearing officer concluded that Langton abused his legislative position to benefit his private consulting business -- exactly what the 1985 opinion said he would avoid doing. In a 62-page report, the officer recommended that Langton be censured, reprimanded and fined $5,000 for repeatedly using his public position to help his business.
Then DCA secretary Tom Pelham told investigators that Langton acted in a “very aggressive and threatening manner” during a 1989 meeting where he voiced his displeasure over DCA’s interpretation of laws applying to his consulting firm. One DCA official told investigators that Langton would remind staff that he was going to be a major player in block grant legislation and would threaten to fire state employees who had regulatory powers that could have cost his firm thousands of dollars in contracts. Langton denied the allegations and said he only contacted DCA staff about problems in the block grant program. In 1992, the House reprimanded Langton for improperly representing his own interests before a state agency, passing a resolution 116-0 that stopped short of finding him guilty of misusing his office.
“I had a momentary lapse of sound judgment and called a state employee to tell her to correct a report,” Langton said then. “That’s all this was.”
Whether it was a true violation of the law or a perceived one, Langton’s experience suggests how complicated it could get for Simpson.
But the 46-year-old said he wasn't worried.
"Without even knowing him, he probably drank the Tallahassee Kool-Aid," Simpson said. "And he became larger than life and people were telling him how great he is.”
That won’t happen to him, Simpson promised. As a husband, father and business owner, he says he can never get a big head, because, as he puts it, he “fails all the time.” In addition, he said, his joint venture makes up to $350,000 a year on the contract, which is miniscule in relation to the $13 million a year his environmental company generates.
“We’re talking less than two percent of my business,” he said. “Why would I risk it?”
So why, then, bother with the contract at all?
“Is it fair to the 80 to 90 employees who work at Simpson Environmental that now i’ve become senator I have to shut down that part of the business?” said Simpson, who filed to run for office three months before the contract was signed. “I don’t think that would be fair.”
Simpson said he won’t succumb to temptation and abuse his office for private gain, but he said for now he must be taken at his word.
“I will always do the right thing,” Simpson said. “If in 10 years from now you look and find out that nothing ever happened, then you know I was telling the truth.”