CEO 84-30 -- April 26, 1984

CONFLICT OF INTEREST

FORMER D.H.R.S. EMPLOYEE'S FIRM CONTRACTING TO PRODUCE TRAINING MATERIALS FOR DEPARTMENT

To: Mr. Donato Pietrodangelo, Former Public Information Director, Department of Health and Rehabilitative Services

SUMMARY:

The Code of Ethics does not prohibit the communications firm of a former D.H.R.S. employee from contracting with the Department to develop physician training materials, where prior to leaving employment with the Department the employee had been involved in discussions regarding the "in-house" production of these materials but not in the contracting process. Although the employee may be said to have participated personally in the contract while an agency employee, his participation was not substantial. Therefore, Section 112.3185(3), Florida Statutes, would not prohibit his firm from receiving the contract.

QUESTION:

Would the Code of Ethics for Public Officers and Employees be violated were your communications firm to contract with the Department of Health and Rehabilitative Services to develop physician training materials, where prior to leaving your employment with the Department you had been involved in discussions regarding the "in-house" production of these materials?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry you advise that until recently you were employed as the Public Information Director for the Department of Health and Rehabilitative Services, in which position you were responsible for supervising the Department's public information activities. You also advise that on November 22, 1983, you submitted your resignation to the Department, effective January 13, 1984, and that you now are employed by a communications firm of which you are the majority owner.

You further advise that although the Public Information Office was not responsible for producing or contracting for training materials used by the Department, the resources of that Office occasionally were used to produce training materials when deemed cost effective. In August of 1983 you were requested by the Department's Developmental Services Program Office to provide advice on using the resources of the Public Information Office to produce a training videotape for physicians on providing medical care for mentally retarded people. You met with officials of the Developmental Services Office on two or three occasions to discuss the needs of that Office and generally how such a program could be produced using "in-house" resources. No specific content, development process, or timetable was discussed. Although the Secretary of the Department directed the Public Information Office to take on the project, because of workload no project proposal had been prepared and the specific requirements, needs, amount of funding, and nature of the training material were unresolved at the time of your resignation.

In February of 1984, the Developmental Services Office issued a request for proposals to develop these physician training materials. You advise that you did not discuss, advise, recommend, or otherwise participate in the development of any request for proposals, bid request, or contract for these materials either before or after leaving the Department. You question whether your firm may contract with the Department to develop the materials, or whether your firm may subcontract with whatever business is awarded the contract to participate in developing the materials.

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 (1983).]

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 the agency employee's responsibility while an employee. [Section 112.3185(4), Florida Statutes (1983).]

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 (1983).]

Under Section 112.3185(3) the question we must address is whether you participated personally and substantially in the contract to be awarded by the Department through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an employee of the Department. At least in one sense, your discussions with and advice to the Developmental Services Office were in connection with the contract which they will award. That Office was inquiring whether your Office could produce the training materials; presumably, the alternative was to have such materials prepared outside the Department by contract.

However, we do not find that your participation in the contract was "substantial." First, we note that your discussions did not relate directly to a proposed contract. Rather, it was contemplated that your Office be involved in producing the training materials. Secondly, your involvement was limited only to preliminary work on the project. No detailed proposal was prepared, which then could have formed the basis of the Department's request for proposal for a contract. Thirdly, we note that you were not responsible for the decision of whether the project should be done through a contract or in-house. At the time of your resignation, it appears that the Department still could have produced the materials internally. For these reasons, we find that Section 112.3185(3) would not apply.

Under the circumstances presented, it is clear that the Department's contract for production of the training materials was not within your responsibility while an employee of the Department. Therefore, we find Section 112.3185(4) inapplicable.

Section 112.3185(5) limits the amount of money which a Department may pay to a former employee for "contractual services" provided by him during the first year after leaving employment with the Department. You have advised that the Department can pay a maximum of $30,000 under the contract, whereas your annual salary was approximately $29,000. However, the contract would require the contractor to provide the Department with 12 videotape playback machines and other equipment, which you estimate to cost approximately $13,000. The term "contractual services" is defined as "the rendering by a contractor of its time and effort rather than the furnishing of specific commodities." Section 287.012(4)(a), Florida Statutes. Therefore, we find that the sum of money which you might receive under the contract for contractual services, not including the amount for commodities to be provided under the contract, would not exceed your annual salary as an employee of the Department.

Accordingly, we find that no provision of the Code of Ethics would be violated were your firm to contract with the Department to develop these physician training materials. As your firm is not prohibited from being awarded the contract by the Department, we find no impediment to your firm's subcontracting with whatever vendor is awarded the contract by the Department in order to participate in developing these materials.