CEO 07-10 -- April 25, 2007

POST-EMPLOYMENT RESTRICTIONS

DJJ FORMER ASSISTANT SECRETARY FOR RESIDENTIAL
SERVICES EMPLOYED BY COMPANY CONTRACTING WITH DJJ

SUMMARY:

This opinion provides advice to a former employee of the Department of Juvenile Justice regarding a number of questions concerning Sections 112.3185(3) and 112.3185(4), Florida Statutes, and concerning Section 112.313(9)(a)4, Florida Statutes, which address post-public-employment or "revolving door" restrictions. CEO 06-3 is referenced.¹

QUESTION 1:

Would either Section 112.3185(3) or Section 112.3185(4), Florida Statutes, prohibit you, a former employee of the Department of Juvenile Justice, from being employed by a company to work with the company's corporate office to expand its competency training program for youth determined by the courts to be incompetent to stand trial (including hiring and training company staff and overseeing new building construction), where the program operates under a contract with the Department of Children and Family Services?

Under the scenario presented, Question 1 is answered in the negative.

By your letter of inquiry, an additional letter from you, and a telephone conversation between you and our staff, we are advised that you were employed from August 29, 2000 through January 29, 2007 as the Assistant Secretary for Residential Services (a Senior Management Service, SMS, position) of the Department of Juvenile Justice (DJJ). In this position, you advise, your responsibility included overall management and policy development for approximately one hundred fifty juvenile residential facilities, of which roughly ninety percent were operated by the private sector, and included overseeing development of residential program requests for proposals (RFP's), personally reviewing, approving, and executing contract renewals, and overseeing monitoring for compliance with terms and conditions of all residential contracts. In addition, you advise that you recently have been offered a position with a company which had a contract with DJJ ² while you held your DJJ employment, but that your work with the company would concern a contract with a State department other than DJJ, a Department of Children and Family Services (DCF) contract for youth determined by the courts to be incompetent to stand trial.

Sections 112.3185(3) and 112.3185(4), Florida Statutes, provide:

(3) 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.

(4) 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.

These statutes address post-public-employment or "revolving-door" work of certain former State-level employees, including that of former employees of DJJ such as yourself. However, in order for the statutes to be applicable, one's post-public-employment work must be in connection with a particular contract regarding which the former public employee played a procurement role or had responsibility in his or her public capacity; the restrictions do not encompass entire subject matters of one's former public agency. CEO 06-3 (note 6).

Inasmuch as you represent that your work for the company would be in connection with a contract the company has with DCF and not in connection with a DJJ contract regarding which you played a role or had responsibility, we find, regarding Question 1, that you would not be prohibited by either statute from working for the company.

QUESTION 2:

Would either Section 112.3185(3) or Section 112.3185(4) prohibit you from working for the company to provide oversight and supervision of the company's Workforce Development projects, including developing a new project in DJJ's Region 3 to provide training and job placement for youth care workers in juvenile justice facilities?

Under the scenario presented, Question 2 is answered in the negative.

It appears that this portion of your work for the company would not be related to any particular contract that the company has with DJJ that was within your DJJ employee responsibility. You advise that local juvenile justice facilities would benefit from this work by receiving trained employees through local Workforce Development agencies, but that you would be working with local Workforce agencies to ensure that potential employees are trained and placed into jobs.

However, we caution that you must be mindful, as to your work for the company under this question, of another statute within the Code of Ethics, Section 112.313(9)(a)4, Florida Statutes, which would prohibit, inter alia, your personal "representation" (which is very broadly defined) as an employee of the company before DJJ for a period of two years following your severance from DJJ. The pertinent statutes provide:

An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, may not personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government. [Section 112.313(9)(a)4, Florida Statutes.]

'Represent' or 'representation' means physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client. [Section 112.312(22), Florida Statutes.]

QUESTION 3:

Would either Section 112.3185(3) or Section 112.3185(4) prohibit you from working with the company to provide Boys and Girls Clubs within juvenile justice residential facilities of the company operated under contracts with DJJ for which you had a procurement role or responsibility within the meaning of the statutes, where implementing the Clubs within DJJ programs is not a requirement of any of the contracts?

Question 3 is answered in the negative, under the circumstances presented in your inquiry.

In addition to the information provided by you set forth above, you advise that although you had a DJJ role or responsibility regarding various DJJ contracts with the company, implementing Boys and Girls Clubs in DJJ programs is not a requirement in any of the company's DJJ contracts. Rather, you advise, the company decided, after it was awarded the DJJ contracts, that it made good sense to develop a partnership with the Boys and Girls Club of America because exposing children to the benefits of such Clubs while the youth were in juvenile facilities would assist the youth in maintaining positive relationships by promoting their continued participation in the Clubs upon return to their home communities. In addition, you advise, the company will receive start-up funding from the Boys and Girls Club for one year and the company will have to raise money to continue the Clubs beyond the first year, but the company receives no funding from DJJ for the Clubs initiative.

We find that your work for the company regarding the Clubs would not violate either statute because, under the scenario presented, we find that your work would not be "in connection with" the DJJ-company contracts for which you had a DJJ role or responsibility. Rather, the work appears to be in connection with an additional, yet-to-be-realized subject, one not within the contemplation of any party to the contracts when the contracts were being designed, entered into, or administered by you in your DJJ capacity, and one receiving no DJJ funding.

However, as with Question 2 above, we again caution you regarding Section 112.313(9)(a)4 and your "representation" of the company before DJJ.

QUESTION 4:

Would either Section 112.3185(3) or Section 112.3185(4) prohibit you from working for the company to expand its aftercare project which connects adult mentors with juveniles who are transitioning from residential programs back to their communities?

Under the scenario presented, Question 4 is answered in the negative, subject to the condition noted below.

You further advise that your efforts for the company regarding aftercare would relate to providing support for the mentors and assisting the company to expand its aftercare model to additional companies—that your efforts for the company would not be in relation to any existing contract between the company and DJJ.³

We find that your working for the company regarding aftercare would not violate either statute, under the scenario presented, because aftercare is not part of the DJJ-company contracts which you had a DJJ role or responsibility regarding, provided that you do not work with the company regarding the one existing DJJ-company contract that contained an aftercare component.

However, you are once again cautioned regarding Section 112.313(9)(a)4 and "representation."

QUESTION 5:

Would either Section 112.3185(3) or Section 112.3185(4) prohibit your working for the company to coordinate the expansion of an alternative to out-of-school suspension for a local school district, where your work for the company would not be related in any way to DJJ or your former DJJ duties?

Under the scenario presented, Question 5 is answered in the negative, because it does not involve any contract between the company and DJJ.

QUESTION 6:

Would either Section 112.3185(3) or Section 112.3185(4) prohibit you from providing technical assistance to the compachief executive officer, its chief operations officer, and its director of grants and special projects, or prohibit you from serving on the company's corporate management team?

Under the circumstances presented, Question 6 is answered in the negative, provided that your assistance or service does not concern a particular DJJ-company contract for which you had a DJJ role or responsibility.

But, yet again, we caution you as to Section 112.313(9)(a)4 and "representation." Your questions are answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on April 20, 2007 and RENDERED this 25th day of April, 2007.

________________________
Norman M. Ostrau, Chair Chairman

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