CEO 06-3 -- March 8, 2006

A former AHCA employee would not be prohibited by Section 112.3185(3), Florida Statutes, from being employed with an HMO in connection with an AHCA Medicaid HMO contract but would be prohibited by Section 112.3185(4) from being so employed. While the employee was not involved in the procurement function [required for Section 112.3185(3) to be applicable], the contract was "within his responsibility." In order not to violate Section 112.313(9)(a)4, Florida Statutes, the employee (who would be leaving a SES position) must confine (for two years after leaving public employment) his "representation" before AHCA to contact necessary to fulfill contracts. CEO 83-8 and CEO 00-6 are referenced.¹

Would Sections 112.3185(3) and 112.3185(4), Florida Statutes, prohibit your holding employment [after you leave public employment with the Agency for Health Care Administration (AHCA)] with a company in connection with a contract regarding which you had AHCA participation or responsibility as described below?

Your question is answered in the negative as to Section 112.3185(3) and in the affirmative as to Section 112.3185(4).

By your inquiry and additional information provided to our staff, we are advised that in 2003 you began employment as a Medical Health Care Program Analyst² in the Medicaid Program Compliance unit of the Bureau of Managed Health Care of the Agency for Health Care Administration (AHCA), reviewing Medicaid HMO plans' provider networks and performing site visits to ensure that adequate medical coverage was available for current and potential enrollees. Further, you stress that as an Analyst you were responsible for annual monitoring of plans regarding the State HMO contract but that you played no role in the procurement or development of applications or contracts with the plans. In 2005, you advise, you were promoted to Program Administrator,³ continuing your role reviewing Medicaid HMO plans' provider networks and performing site visits, with responsibility for assisting the AHCA Administrator in establishing, tracking, and evaluating unit goals, objectives, and priorities, and in providing professional guidance, expertise, and advice to the unit, including directly supervising four program analysts who monitored the Medicaid HMOs. However, you emphasize that as Program Administrator you had no responsibility or involvement in the development of the Medicaid HMO contract and program, which instead were functions of the Bureau of Health Systems Development and Contract Management (which was located in a separate office building at the AHCA complex). In addition, you advise that, as part of a reorganization this year, your position was transferred to the Network Services unit of the Bureau of Managed Health Care, where you no longer supervise the four analysts and where you no longer monitor Medicaid HMOs; rather, you advise, you are now assigned monitoring of commercial plan HMOs, none of which is the HMO with which you are pursuing post-AHCA employment. And you emphasize that at no time during your employment with AHCA have you been assigned oversight duties or been part of an onsite review team for the HMO you with which you are pursuing employment.

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.

This statute would prohibit your holding post-AHCA employment with the HMO in connection with the Medicaid HMO contract if, while at AHCA, you participated personally and substantially regarding the contract in any of several activities which we have construed to be limited to activities involving the procurement process (CEO 83-8).

We find that your proposed employment with the HMO would not be prohibited by Section 112.3185(3) because, while you had duties at AHCA regarding the Medicaid HMO contract and the particular HMO's interface with AHCA under the contract, the situation presented to us does not indicate that your duties concerned development or procurement of the contract. Rather, as you state in your inquiry, you played no role in the procurement or development of applications or contracts with the plans, and you had no responsibility or involvement in the development of the Medicaid HMO contract and program, which were functions of an AHCA bureau not your own.

However, we find that your proposed employment with the HMO is prohibited by Section 112.3185(4), Florida Statutes, which provides:

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.

Unlike Section 112.3185(3), Section 112.3185(4) is not limited to being triggered by involvement in the contract procurement process but, instead, can be triggered⁴ regarding any contract (for contractual services⁵) which was "within [the] responsibility" of a State agency employee. While we have construed "within responsibility" not to encompass situations in which an employee only had a very minor role regarding a contract, application of such a construction is not appropriate in the instant situation, a situation in which you and persons subordinate to you had important public agency roles monitoring HMOs (including the particular HMO with which you would work post-AHCA).,⁶

Accordingly, we find that your proposed employment after you leave public employment, with the HMO, is prohibited by Section 112.3185(4), Florida Statutes,,⁷ until expiration of the HMO Medicaid contract which was within your AHCA responsibility.⁸

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 3, 2006 and RENDERED this 8th day of March, 2006.

^[1] For prior opinions of the Commission, go to www.ethics.state.fl.us
^[2] A Career Service position, you advise.
^[3]A Selected Exempt Service (SES) position, you advise.
^[4] Another element of Section 112.3185(4) is that the post-public-employment employment be "in connection with" the public contract which was within the employee's public capacity responsibility. We find that your employment with the HMO would be in connection with the contract, based on your description of your role in your inquiry:

After resigning my position with [AHCA], I would be employed with an HMO in their regulatory affairs unit. My duties would be managing the Medicaid regulatory needs of the plan, coordinating the plan's relationship with [AHCA] and Centers for Medicare and Medicaid Services (CMS)[,] and company wide compliance with state and federal guidelines. I would supervise a staff of 5 unit employees and coordinate unit responsibilities and goals with a regulatory affairs director. I would have no role in influencing the compensation received by the plan since this is solely determined by the Bureau of Health Systems and Bureau of Contract Management at contract renewal time.

^[5]We find that the HMO Medicaid contract is for "contractual services," as required for applicability of Section 112.3185(4). We are aware of no decision or determination that finds that an HMO Medicaid contract is not for contractual services, and the definitions of "contractual service" and "commodity," codified at Sections 287.012(9) and 287.012(5), Florida Statutes, respectively, support our finding.
^[6] Regarding the duration of the restriction to you, under the facts presented, we find that it will cease after the expiration of the contract (which you represent will expire on June 30, 2006), notwithstanding that the restriction can be applicable, depending on factual context, for up to two years after one leaves public employment. It is our view that the restrictions of Sections 112.3185(3) and 112.3185(4) go to particular contracts, not to entire programs or subject matters (CEO 00-6).
^[7]We find that "representation" [defined at Section 112.312(22), Florida Statutes] by you regarding AHCA or AHCA personnel within two years of your leaving AHCA employment, in behalf of the HMO, will not be prohibited by Section 112.313(9)(a)4, Florida Statutes, provided that the communications or contact are limited to implementing or fulfilling the HMO's responsibilities under a contract and are not meant to influence AHCA's decisionmaking. CEO 00-6. Section 112.313(9), Florida Statutes, provides in part:

(9)POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.-- (a)1.It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.

(I)Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 . . . .

4.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.