CEO 05-19 -- December 7, 2005

 

POSTEMPLOYMENT RESTRICTIONS

 

FORMER DEPARTMENT OF CHILDREN AND FAMILY

SERVICES EMPLOYEE EMPLOYED WITH COMPANY

IN CONNECTION WITH DEPARTMENT CONTRACT

 

To:   Mike Watkins, Department of Children and Family Services  (Tallahassee)

 

SUMMARY:

 

Through the application of Section 112.316, Florida Statutes, a prohibited conflict of interest would not be created under Section 112.3185(3), Florida Statutes, were an employee of the Department of Children and Family Services (DCF) to leave public employment and work with a foster care provider in connection with a DCF contract regarding which the employee had some participation while a DCF employee.  Even though the employee participated as a member of DCF's "negotiation team" regarding the contract, such participation occurred after the invitation to negotiate (ITN) was developed and after the vendor (provider) was selected, but before the contract was entered into; the employee was not involved in the development of the ITN for the contract and was not involved in the selection of the vendor; the functions of the contract were negotiated on a consensus basis and approved by a DCF administrator other than the employee; and the contract followed a template provided by DCF headquarters and was reviewed by a readiness review committee.  Under these circumstances, the application of Section 112.316, Florida Statutes, is proper.  CEO 83-8, CEO 00-6, CEO 03-8, CEO 05-9, and CEO 05-16 are referenced.[1] 

 

QUESTION:

 

Would Section 112.3185(3), Florida Statutes, prohibit your holding employment or a contractual relationship [after you leave public employment with the Department of Children and Family Services (DCF)] with a company in connection with a contract regarding which you had DCF participation as described below?

 

      Under the specific circumstances addressed herein, your question is answered in the negative.

 

      By your letter of inquiry, additional information provided by electronic mail to our staff, and a telephone conversation between you and our staff, we are advised that you serve as District Administrator for District 7 of the Department of Children and Family Services (DCF), having been placed in the position in March 2004. In addition, we are advised that you have been offered a position (to begin after you leave DCF public employment) with a company which provides foster care and related services to DCF under a contract regarding which you had some participation when you worked for DCF District 2. 


      Further, you advise that as part of the response to the Legislature's directive that all foster care and related services provided by DCF be privatized, DCF executed a services contract [regarding which you participated after the invitation to negotiate (ITN) was developed and after the vendor (company) was selected] with the company in March 2004 (which will run through June 2008) to provide such care and services but that you were not involved in development of the invitation to negotiate (ITN) for the contract and were not involved in the selection of the company to be the vendor under the contract.  Also, you advise that you had no DCF responsibility for the contract after its execution and that you left District 2 of DCF (where you had your involvement with the contract in behalf of DCF) altogether in March 2004 to take your current DCF position in a different part of the State (District 7), a position you have held ever since leaving District 2.  More specifically, you advise that you were on a DCF negotiation team which negotiated various functions[2] of the contract (vis-ŕ-vis the already-selected provider) on a consensus basis, with the consensus then being presented for approval to a DCF administrator other than yourself, with the contract following a "pre-defined template" provided by DCF headquarters, which was then reviewed for "readiness" by a committee comprised of stakeholders, State staff, and peer-provided staff.  However, you emphasize that you had no role in DCF's selection of the company. 


      Thus, you inquire as to whether your DCF participation regarding the contract was "substantial,"[3] thereby subjecting you to the postemployment restriction (unlimited in duration) codified in Section 112.3185(3), Florida Statutes,[4] with the effect of the restriction (if applicable) being that you would be prohibited from working for the company in connection with the contract (which runs through June 2008) after you leave DCF.


      Section 112.3185(3) 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.

       

Section 112.3185(3) restricts the employment you can have after leaving DCF employment by prohibiting you from becoming employed by a business entity in connection with a contract in which you participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation (in which you participated personally and substantially in the procurement process).  See CEO 83-8.  While it appears that you may have been personally and substantially involved in procuring (obtaining or bringing about) the contract vis-ŕ-vis your participation on the DCF contract negotiation team (which we stress did not involve ITN development or selection of the provider/company), your participation occurred after the contract's ITN was developed and after the provider was selected, a situation in which you had no ability to influence DCF's choice of provider (material decisions already having been made without your participation).


      Therefore, we believe that the prohibition of Section 112.3185(3) must be read in conjunction with Section 112.316, Florida Statutes, which provides:

 

CONSTRUCTION.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

 

        In previous opinions we have applied this provision to conclude that former public employees would not be in violation of Section 112.3185, Florida Statutes, were they to work privately in connection with a contract regarding which they had public participation or responsibility, where the employees had not conceived of the need for the private contract, where they did not have the ability as a public employee to target potential contractors (providers) for their public agencies' contracts, or where they were not responsible for abolishing their former public agencies' direct provision of services and statutorily creating privatized replacements.  Also, it is apparent that application of Section 112.316 is called for in your situation because previous opinions of ours finding the prohibition of Section 112.3185(3) to be applicable involve situations in which the public employee had the ability to affect the selection of a provider (from among more than one applicant), an ability not possessed by you regarding the contract/provider.  See, for example, CEO 05-9.   

 

      Accordingly, we find that neither Section 112.3185(3) nor Section 112.3185(4), Florida Statutes, would prohibit your working for the foster care provider in connection with the contract regarding which you were a member of DCF's negotiation team, under the particular circumstances set forth herein.[5]

 

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

 

 

                                          ____________________________________

                                          Thomas P. Scarritt, Jr., Chairman

 

 

[1] Prior opinions of the Commission on Ethics are viewable on its website:  www.ethics.state.fl.us

[2] You advise that the functions included:  developing and deploying a transition of services plan; ensuring that all foster care and related services operations were included in the transition plan; developing and deploying a staffing plan; assignment and transition of lease agreements; assignment and transition of property and equipment; approval of telecommunications strategies; assessment and approval of communication strategies; reviewing and approving deliverables for readiness assessment; readiness assessment preparation; developing and executing working agreements; and limited budget negotiations  (with Section 409.1671(1)(a), Florida Statutes, specifying that all foster care and related services funding be made available to the community based care lead agency). 

[3] It is clear from the information provided by you, and we so find, that your participation regarding the contract was "personal," as required for applicability of Section 112.3185(3).

[4] Regarding Section 112.3185(4), Florida Statutes, which subjects former employees of state agencies to a two-year postemployment restriction regarding contracts for "contractual services" which were "within [the employee's] responsibility while [a public] employee," we find that the statute is not applicable to the situation you present, a situation in which you had no DCF responsibility for the contract after it was executed.  In so doing, we adhere to our precedent finding that Section 112.3185(4), unlike Section 112.3185(3), cannot be applicable unless one's public capacity responsibility regarding a contract exists simultaneously with the existence of the contract.  Here, your responsibilities for DCF regarding the contract went to Section 112.3185(3) and the procurement process, they did not involve responsibility for the contract after it came into existence.  See, for example, CEO 00-6, CEO 03-8, and CEO 05-9. 

[5] In addition, please be aware of Section 112.313(9)(a)4, Florida Statutes, which addresses representation or lobbying before one's former agency (i.e., DCF) within two years of leaving public employment.  However, we note that this statute does not address communications that you would have with DCF in fulfilling the contract that is the subject of this opinion.  See CEO 05-16 and CEO 00-6.