CEO 07-16 - June 13, 2007

CEO 07-16 -- June 13, 2007

POSTEMPLOYMENT RESTRICTIONS

DCF FORMER EMPLOYEE PRIVATELY EMPLOYED IN CONNECTION WITH DCF CONTRACT

To: Mr. Stephen Conrad (Jacksonville)

SUMMARY:

Through the application of Section 112.316, Florida Statutes, to the particular facts of this inquiry, a former employee of the Department of Children and Family Services is not subject to the two-year post-public-employment restriction of Section 112.3185(4), Florida Statutes. CEO 05-19, CEO 01-6, and CEO 95-19 are referenced.^[1]

QUESTION:

Would Section 112.3185(4), 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 the limited DCF responsibility described below?

Under the particular circumstances of your inquiry, this question is answered in the negative.

By your letter of inquiry and additional information provided to our staff, we are advised that you are employed by the Department of Children and Family Services (commonly known as the Department of Children and Families or DCF), District 4, as the District Manager for Administrative Services, and that one of the sections you supervise includes contract managers for community based care organizations contracting with DCF. In addition, you advise that because your DCF position is being eliminated with a reorganization of DCF effective July 1, 2007, you have applied for a private position with a community based care provider as its chief operations officer, with the position including your working for the provider in connection with a contract for contractual services between DCF and the provider which expires in February 2009.

Further, you advise that the contract was signed in 2004, that you began your employment with DCF in 2005, and thus that you did not participate personally and substantially through decision, approval, disapproval, recommendation, rendering advice, or investigation regarding the contract. However, regarding the particular contract and similar contracts, you describe your DCF role to include:

My primary role was to make sure the contract managers had a professional relationship with the community based care providers and the tools and skills to perform their functions.
Before September 2006, I supervised the contract manager supervisor who supervised the individual contract managers who were by statute assigned to contracts. It was only coincident with the elimination of the contract management supervisor that I became the direct supervisor for contract managers. At the time of my request for an advisory opinion, I had been doing this for six months.
My position is being eliminated with the reorganization of the Department of Children and Families effective July 1, 2007 and the contract managers will be assigned to another individual and staff element for supervision.
When I took the position as district manager for administrative services in October 2005, there was another position that supervised the contract managers. This position, contract manager supervisor, reported to me along with the public information officer and the client relations staff. The contract management supervisor had all of the contract managers working for him. I was even further removed than I am today.
However, as a temporary measure as a result of the budget issues for FY 06/07 for District 4, in September 2006 the position of contract management supervisor was not filled. It also was not deleted. So for the past six months we have not had a contract management supervisor and the contract managers have reported to me.
Originally, my task was to ensure that the contract managers, through the contract management supervisor, were doing their jobs. My focus was on assessing their performance functions as contract managers. I continued this focus when the contract management supervisory position was filled.
The NEW Department of Children and Families reorganization recently approved by the Secretary of the Department of Children and Families has the contract managers assigned to a unit that is not under my purview.
Contract managers have the responsibility for overseeing contract performance measures for their respective contracts. If a measure needed attention by the provider, it was either the contract manager or the District Administrator that signed a request to the provider for a corrective action plan. I did not sign corrective action plans.
Contract monitoring is performed by the Department of Children and Families' contract oversight unit. This is not part of my organization. The contract managers take the relevant findings from the contract oversight unit and ask for corrective action plans. Additionally, our zone program office also monitors contract performance and requests that the contract managers request information from the providers relevant to these issues.
My most substantive role was to ensure that the contract management supervisor position (when filled) and all contract managers worked with their providers in a professional manner and that they had the training and experience to perform their functions.

Section 112.3185(4),^[2] Florida Statutes, provides:

An agency employee may not, 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. If the agency employee's position is eliminated and his or her duties are performed by the business entity, this subsection may be waived by the agency head through prior written approval for a particular employee if the agency head determines that the best interests of the state will be served thereby.

Inasmuch as you have represented that your work after you leave DCF will be in connection with a DCF contract for contractual services,^[3] we must determine whether the contract was "within your responsibility" while you were a DCF employee.

We find that the contract was within your responsibility. The relevant scenario that crystallizes from your inquiry is that you (in your DCF capacity) were in the chain of supervision above contract monitors/managers who managed the particular contract with the provider, and that, among other DCF duties of yours concerning the monitors/managers, you saw or reviewed their corrective action plans or related information regarding the contract and the provider. This finding is in accord with our finding in CEO 01-6 construing "within responsibility" to include situations in which one is the supervisor of one who actually participates regarding a matter. Thus, Section 112.3185(4), if applied in isolation, would restrict your post-DCF employment regarding the provider.

However, under the particular circumstances of your inquiry, which include the contract in question having been designed and entered into by persons other than you prior to your employment with DCF, your short tenure as a DCF employee, the responsibilities of the District Administrator and the contract oversight unit, and your not having been the contract monitor/manager of the contract, we believe that it is appropriate to apply Section 112.316, Florida Statutes,^[4] thereby negating the restriction that would arise via the literal language of Section 112.3185(4). See CEO 95-19 (former AHCA employee employed by prepaid Medicaid health plan provider contracting with AHCA) in which we observed that "Section 112.3185(4) was designed to prevent State employees from using their public positions to conceive of a need for services, develop a contract to obtain those services, and then to 'switch sides' and go to work for the entity that was awarded the contract that they conceived and developed while public employees."

Accordingly, under the specific circumstances of your inquiry, we find that you are not restricted by Section 112.3185, Florida Statutes,^[5] from working after you leave DCF employment in connection with a contract between your private employer or a related entity and DCF.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 8, 2007 and RENDERED this 13th day of June, 2007.

____________________________________

Norman M. Ostrau, Chairman

^[1]For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us

^[2]We find that Section 112.3185(3), Florida Statutes, would not be violated by your working for the provider in connection with the contract because you represent that you did not have a procurement role as described in the statute and because you represent that the contract was entered into prior to your DCF employment. Section 112.3185(3) provides:

An agency employee may not, 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. When the agency employee's position is eliminated and his or her duties are performed by the business entity, this subsection does not prohibit him or her from employment or contractual relationship with the business entity if the employee's participation in the contract was limited to recommendation, rendering of advice, or investigation and if the agency head determines that the best interests of the state will be served thereby and provides prior written approval for the particular employee.

^[3] In correspondence with our staff following your letter of inquiry, you and an officer of the umbrella organization you plan to work for suggested that perhaps the restriction of Section 112.3185(4) could be avoided by your being employed by an entity within their organization that does not have a contract with DCF, with the entity then subcontracting with the organization's entity that is the DCF provider for you to provide services as the chief operations officer of the entity that is the DCF provider. We find that this would not eliminate the restriction. The statute encompasses employment or a contractual relationship with "any business entity," if the work is in connection with a contract for contractual services which was within one's public agency employee responsibility.

^[4]Section 112.316 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.

^[5]By telephone, you stated that your position with DCF is a Selected Exempt Service (SES) position. SES positions are among the positions subject to the two-year restriction of Section 112.313(9)(a)4, Florida Statutes, regarding lobbying or "representation" after leaving a covered public position. However, your making contact with DCF regarding the provider's delivering on the particular contract would not, in and of itself, constitute representation; nevertheless, contact other than that concerning delivery (for example, contact to secure another contract) could constitute prohibited representation. CEO 05-19 (note 5). Thus, govern yourself accordingly regarding Section 112.313(9)(a)4 and your contact with DCF within two years of leaving DCF; and note the broad definition of "represent" or "representation" codified at Section 112.312(22), Florida Statutes.