CEO 05-9 -- June 7, 2005

To: Name withheld at person's request.

SUMMARY:

Section 112.3185(4), Florida Statutes, would prohibit a former employee of the Department of Juvenile Justice (DJJ) from holding employment or a contractual relationship with a company (within two years of her retirement or termination from DJJ) in connection with a contract for contractual services which was within her responsibility while a DJJ employee. Section 112.3185(3), Florida Statutes, would prohibit her holding of employment or a contractual relationship with a company in connection with a contract in which she participated personally and substantially while a DJJ employee. CEO 03-8, CEO 00-6, and CEO 83-8 are referenced. ^[1]

Would Section 112.3185, Florida Statutes, prohibit your holding employment or a contractual relationship [after you leave public employment with the Department of Juvenile Justice (DJJ)] with a company in connection with a contract regarding which you had DJJ responsibility as described below?

By your letter of inquiry and an attachment, you advise that from May 2001 until the present, you served as a Senior Management Analyst II, working at the Department of Juvenile Justice's (DJJ) headquarters residential services office, in a unit comprised of a director and several other staff, functioning as a liaison between the contract administration office and the regional staff (particularly the contract managers), with your responsibilities including: ^[2]

1. Overseeing all residential contracts in two of the five residential services regions.

2. Providing technical assistance to regional contract managers, other Departmental staff, and contract provider staff, regarding Department policies and procedures and general contract/procurement questions.

3. Developing draft scopes of services (the programmatic aspects of operating a residential program) for procurements [i.e., requests for proposals (RFPs) and exempt contracts].

4. Serving as a member of a three-person DJJ staff group evaluating proposals submitted by would-be providers in response to RFPs.

6. Serving on DJJ teams conducting inspections/audits resulting in findings enforced by contract managers.

Thus, given your DJJ responsibilities, you inquire as to whether you would be prohibited from employment or contracting with a company in connection with a contract regarding which you had such responsibility.

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.]

Section 112.3185(3) would prohibit your working for a company after you leave your DJJ public employment in connection with a contract regarding which you personally and substantially played a procurement or development role (see CEO 83-8) while at DJJ.

Under the facts you present in your inquiry, it is obvious (and we so find) that you participated personally as a DJJ employee in the procurement or development of contracts for residential programs. Therefore, for purposes of Section 112.3185(3), our analysis focuses on whether your participation was "substantial." CEO 03-8 arguably is our opinion most analogous to your inquiry. In the opinion, we found that Section 112.3185(3) did not prohibit former employees of the State Technology Office (STO) who served as technical evaluators of one of four categories of responses to prospective vendors' invitations to negotiate (ITN) from accepting subsequent employment with a vendor in connection with a contract awarded as a result of the ITN, finding that their participation in the procurement of the contract was not "substantial."

However, although there are similarities between your situation and that of the STO employees in CEO 03-8 (such as the use of fixed criteria or fixed standards in performing a public sector task regarding contracts), there also are material differences which lead us to find that your participation regarding residential program contracts is "substantial." For example, in contrast to the STO employees (who had no decision-making relative to the awarding of a contract to a particular vendor, including not being part of the negotiation team and not participating in any part of the negotiation process), you advise that you served on DJJ teams negotiating with top bidders. Further, in contrast to your many DJJ duties and responsibilities regarding residential program contracts, the STO employees' participation in the procurement process was strictly limited to applying a "subset of fixed criteria" to vendor responses and submitting resulting vendor scores to the STO.

In making our findings herein, we are not unaware of the dilemma posed by the privatization of former government-provided services and the resulting need to staff private companies with knowledgeable personnel, many of whom formerly were employed by the government in delivery of the same or similar services. However, it is the Legislature which is empowered to address and remedy the situation; we do not have the ability to amend Section 112.3185.

Accordingly, we find that your employment or holding of a contractual relationship, after retirement or termination from DJJ, ^[3] with a business entity in connection with a DJJ contract regarding which you participated as set forth in your inquiry, is prohibited by Section 112.3185(3), Florida Statutes. ^[4]

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 2, 2005 and RENDERED this 7th day of June, 2005.

^[2]Your DJJ responsibilities are more fully described in the two-page attachment to your letter of inquiry. The attachment is titled "ATTACHMENT 1, SUMMARY OF CONTRACTING AND PROCUREMENT INVOLVEMENT."

^[3]Please note that the prohibition of Section 112.3185(3) is not limited to the two years following your retirement or termination and that it is not limited to contracts for contractual services. Also, note that the prohibition of Section 112.3185(3), in addition to applying to contracts in existence while your were employed by DJJ and whose existence continues after you leave DJJ, applies to contracts not entered into (not "inked") until after your severance from DJJ, provided you had the role described in your inquiry in regard to the particular contract.

^[4]In addition, we find that your working privately after leaving DJJ in connection with a contract for contractual services which you managed, monitored, or which otherwise was within your responsibility as a DJJ employee is prohibited by Section 112.3185(4), Florida Statutes. However, please note that the prohibition of Section 112.3185(4), unlike the prohibition of Section 112.3185(3), cannot apply to contracts that were not in existence until after you ceased DJJ employment. CEO 00-6 and CEO 03-8. We note that the contracts described herein appear to be contracts for "contractual services" within the meaning of Section 287.012(9), Florida Statutes.