POST-EMPLOYMENT RESTRICTIONS

AGENCY ASSISTANT SECRETARY BECOMING EMPLOYED
BY AGENCY CONTRACTOR

To: Mark Herron, (Attorney, Tallahassee)

SUMMARY:

A defined employee of the Department of Children and Families would not be prohibited by Sections 112.3185(3) or (4), Florida Statutes, from accepting employment as Chief Financial Officer of an entity contracting with the Department, because such employment would not be "in connection with" the contract between the provider and the agency. The employee would be prohibited for two years by Section 112.313(9)(a)4, Florida Statutes, from personally representing another person or entity for compensation before the Department.

QUESTION:

Would the Code of Ethics for Public Officers and Employees be violated were you, an Assistant Secretary and Acting Deputy Secretary with the Department of Children and Families, to become employed as Chief Financial Officer by a provider whose contract you approved as Assistant Secretary?

Your question is answered in the negative, under the circumstances presented.

You write on behalf of Melissa Jaacks, who is currently Acting Deputy Secretary of the Department of Children and Families (DCF) and who has been offered a position as Chief Financial Officer for Eckerd Youth Alternatives, Inc., ("Eckerd").

You advise that DCF has outsourced its child welfare function to "CBC's"—Community Based Care lead agencies throughout the state. Eckerd has programs in nine states, you relate, and their largest contract, constituting $50 million of Eckerd's $125 million in contracts, is with the DCF in Pasco/Pinellas Counties. You state that as CFO, the Acting Deputy Secretary will be responsible for financial reporting, budgeting, financial management, banking and tax reporting for all aspects of Eckerd's operations, and will have ultimate fiscal responsibility for the Eckerd contract with DCF to the same extent and to the same degree as other program contracts.

You relate that at all times pertinent to this opinion, the Acting Deputy Secretary served as Assistant Secretary of Administration of DCF. In that capacity, you write, she had responsibility in the areas of Budget, Financial Management, Information Technology, Human Resources, General Services, and Contracted Client Services.¹ You state that CBC's are selected through a competitive procurement process and that the position of Assistant Secretary is generally not involved in the competitive procurement process; rather, the development and review of the Invitation to Negotiate and negotiation of the contract "are all matters managed generally at the Region level by administrators who report to a different Assistant Secretary." However, you relate that the Acting Deputy Secretary was involved in the Eckerd Pasco/Pinellas contract in the following ways:

• In fall 2007, she chaired a workgroup which reviewed the operations of the company that then held the Pasco/Pinellas contract. The workgroup's report was critical of that contractor, and recommended several options to the Secretary, one of which was a competitive procurement.
• Several of her subordinates were on the procurement team for the Eckerd contract, although, you relate, they did not report to her regarding any of their activities.
• She signed, on behalf of the DCF Secretary, letters to the Governor, Speaker of the House, and Senate President, certifying Eckerd's readiness to take over as lead CBC.²
• She signed an "Approval of Contract/Renewal Annualized Amount Over $1,000,000." You advise that this is a document signed by the Deputy Secretary and the Assistant Secretary for Administration in order to give the Regional Director authority to sign the contract. You have provided a policy memorandum dated April 30, 2007 speaking to this requirement. It states that requests for approval for any contracts, renewals, or amendments exceeding $1 million must be forwarded to the Assistant Secretary for Administration "for coordination, then to the Deputy Secretary for approval." The memorandum also makes a change to the Department's operating procedures to require that such contracts, amendments, and renewals must be approved by the Deputy Secretary "with concurrence of the Assistant Secretary for Administration."
• The Acting Deputy Secretary's job duties, as Assistant Secretary for Administration, included oversight of Contracted Contractual Services, whose functions include developing and maintain contract operating procedures, procurement documents, model contracts, monitoring tools, and cost analysis instruments. You relate that this section also provides contract related technical assistance, oversight and training to DCF personnel involved with contracts.
• In July of last year, the Contract Oversight Unit, which performs on-site monitoring of DCF contracts³ was placed under the direct supervision of one of the Acting Deputy Secretary's subordinates.
• The CBC Fiscal Monitor Group, a function which engages in analysis, on-site reviews, and technical assistance beyond that engaged in by the COU and which was developed during the 2007/2008 fiscal year, is under the supervision of a another direct subordinate. This group has completed two reviews of the Eckerd Pasco/Pinellas contract.

Section 112.313(9)(a)4, Florida Statutes, provides in relevant part:

No agency employee shall 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, prohibits a former agency employee from representing another person or entity for compensation "before the agency with which he or she was employed" for a period of two years following vacation of her position. The term "employee" is defined in Section 112.313(9)(a)2.a.(I), as including members of the Selected Exempt or Senior Management Service. You advise that the Acting Deputy Secretary is a member of the Senior Management Service. Accordingly, Section 112.313(9)(a)4 prohibits her from representing any other person or entity before the DCF⁴ for a period of two years after terminating her employment. "Representation" is defined at Section 112.312(22), Florida Statutes, as "actual 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," and would include such activities as discussing future contracts between the DCF and Eckerd.

Sections 112.3185(3) and (4), Florida Statutes, also apply in post-employment situations involving potential employers who contract with a State employee's agency. These provisions state:

(3) 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.

(4) 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 his or her responsibility while an employee.

In CEO 01-6, we observed, "Neither Section 112.3185(3) nor Section 112.3185(4) strictly prohibits a former State employee from going to work for an entity that has contracted with his or her agency. Instead, the statutes prohibit that employment only if it is 'in connection with' the contract." That opinion dealt with a DCF District Administrator who was to become employed with an agency provider as its Regional Director for Family Preservation Services. We noted that her employment would encompass a great deal more than the contract between DCF and the provider, which itself was winding down. For example, she would be responsible for managing and administering the provision of all of the provider's services in the region, which included not only Adult and Family Substance Abuse Services under the DCF contract, but services to the Lee County School District and to one or two elementary schools, the provision of services outside of any contract she was involved in as District Administrator, and the expansion of services by the provider in the region and the search for additional contracts and sources of funding for the provider. Similarly here, it appears that your responsibilities as CFO for the company, which has programs in nine states, will entail much more than the contract between DCF and Eckerd, such that it cannot be said that your employment in that capacity is "in connection with" the contract.

As we have determined that the Acting Deputy Secretary's employment as CFO is not "in connection with" the Pasco/Pinellas contract, it is not necessary for us to determine whether her participation in the procurement process was "personal and substantial," for purposes of Section 112.3185(3) or "within her responsibility" for purposes of Section 112.3185(4). Although the Acting Deputy Secretary initially suggested that she may have other duties in addition to her responsibilities as CFO⁵, you represent that any additional responsibilities she may someday have with Eckerd are, at this point, speculative. If at some future date, she is asked to perform duties which she is concerned may be considered to be "in connection with" the contract, we invite the Acting Deputy Secretary to seek further advice.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 12, 2009 and RENDERED this 17th day of June, 2009.

____________________________________

Cheryl Forchilli, Chair

^[1] You advise that the Acting Deputy Secretary's new position did not bring with it any new responsibilities for existing or new contracts and that she will not be signing or negotiating new contracts.