POST-EMPLOYMENT RESTRICTIONS

DCF FORMER EMPLOYEE EMPLOYED BY
ENTITY CONTRACTING WITH DCF

To:        Name withheld at person's request (Apopka)

SUMMARY:

Advice is provided to a former employee of the Florida Department of Children and Family Services regarding applicability of Sections 112.313(9)(a)4 and 112.3185, Florida Statutes, to her particular situation and work history. CEOs 11-21, 11-20, 11-10, 09-5, 07-16, 07-10, 06-3, 05-13, and 02-17 are referenced.¹

QUESTION:

How do the post-public-employment "representation" restriction of Section 112.313(9)(a)4, Florida Statutes, and the post-public-employment restrictions of Sections 112.3185(3), (4), and (5), Florida Statutes, apply to you, a former employee of the Department of Children and Family Services, given your public employment history?

Your question² is answered as set forth below.

By your letter of inquiry, materials accompanying the letter, and additional information provided by you to our staff, you relate that you formerly were employed by the Department of Children and Family Services³ (DCF), having vacated DCF employment on July 22, 2011. Further, you state that you began employment with DCF in 2001 and held various positions there, including your last, the Career Service System position you vacated on July 22, and your next-to-last, a Selected Exempt Service (SES) position [Substance Abuse and Mental Health Program Office (SAMH), Circuit 18, Operations and Management Consultant II], which you held from August 21, 2009 to June 30, 2011. In addition, you relate that you began private employment on July 25, 2011, as Executive Director⁴ of Central Florida Cares Health System, Inc. (CFCHS or corporation), a nonprofit, s. 501(c)3 corporation. Additionally, you state that the corporation is seeking the award of a DCF contract to perform managing entity services⁵ in DCF's Central Region, specifically for Judicial Circuits 9 and 18.

Regarding the contract, you state that, should it be awarded to the corporation, it likely will be the only contract that the corporation will hold with DCF for approximately the next two years, and that approximately ninety percent of your work for the corporation will involve this contract. Further, you relate that all current DCF contracts (existing contracts, contracts other than the one sought by the corporation) with behavioral health providers will terminate on the day that the managing entity contract starts, and that the managing entity (hopefully, in your view, the corporation) will enter into new contracts (subcontracts) with all of those same behavioral health providers on that same day. Also, you state that you, in your capacity as a DCF employee, did not sign any of the contracts which are terminating, but that you supervised the contract manager who managed some of those to-be-terminated contracts, and that you had no DCF employee role regarding the new contract, as to decision, approval, disapproval, recommendation, rendering of advice, or investigation.

Further, in elaborating on your prospective work for the corporation, you relate that you would be negotiating service contracts with the former DCF contractors and that these negotiations would be only with the private businesses that formerly held contracts with DCF and would not include any contact by you with DCF or its personnel. However, you also state that Central Region SAMH Program Office personnel would attend negotiations for the corporation which you might have with the DCF SAMH Program Office in Tallahassee. Further, you relate that while you were employed with DCF, you interacted with the Tallahassee SAMH staff to receive technical assistance, to answer assignments, or to collaborate in work groups. Also, regarding your former DCF employment and DCF organizational changes, you write:

[My three staff and I] were the Circuit 18 SAMH Program Office. My immediate supervisor was the Circuit Administrator who was not a SAMH employee. District 7 SAMH was split in two to create Circuit 18 and Circuit 9 a few years ago. Then, SAMH Circuits 5, 9, 10, 18, and 19 were combined to become the Central Region SAMH office when my position (as well as many others) was eliminated June 30. The Central Region SAMH houses the same functions [as did the former Circuit 18/District 7 SAMH program offices], [but it] now covers more territory as one entity.

And, in response to an information request from our staff regarding the breadth of your interaction within the whole of DCF, you write:

. . . on occasion we would interact to transfer a client from one area to another, or we would be in attendance at joint management meetings called by the DCF Regional Administrator or by Tallahassee which may have included DCF personnel from other areas in addition to SAMH. Also, I interacted heavily with other DCF management in Circuit 18 while I was there.

Relevant statutes provide:

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. [Section 112.3185(3), Florida Statutes.]

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. [Section 112.3185(4), Florida Statutes.]

The sum of money paid to a former agency employee during the first year after the cessation of his or her responsibilities, by the agency with whom he or she was employed, for contractual services provided to the agency, shall not exceed the annual salary received on the date of cessation of his or her responsibilities. This subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state. [Section 112.3185(5), Florida Statutes.]

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 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. [Section 112.312(22), Florida Statutes.]

In order for a former State employee to be restricted by Section 112.3185(3), he or she must have had, in their capacity as a State employee, a personal and substantial role in the development or procurement of the particular contract they will be working in connection with for their private employer. In the situation you present, you will be working with the corporation in connection with the DCF managing entity contract, but you also advise that you had no role as a DCF employee regarding this contract, as to decision, approval, disapproval, recommendation, rendering of advice, or investigation--the development/procurement activities which can implicate the restriction.

Therefore, in view of your work history, we find that you are not subject to the restriction of Section 112.3185(3).⁶

In order for a former employee to be restricted by Section 112.3185(4), he or she must work privately, within two years of leaving State employment, in connection with a particular contract for contractual services, which contract was "within his or her responsibility" while a public employee. In the scenario you put forth, you will be working for the corporation in connection with the managing entity contract and this contract will be for "contractual services." However, we find that this contract will not have been "within your responsibility" because, inter alia, it did not exist (had not been entered into) while you were a DCF employee. See, for example, CEO 02-17 (note 5), in which we found that "within responsibility," a phrase not defined in the Code of Ethics, encompasses a monitoring, managing, or similar role regarding a contract, roles which cannot exist in relation to a contract which has not yet been entered into.

Therefore, in view of your work history and the chronology of the to-be-awarded managing entity contract, we find that you are not subject to the two-year restriction of Section 112.3185(4). The fact that as a DCF employee you supervised a contract manager who managed some of the current contracts between DCF and behavioral health providers (contracts which you advise will be ending on the same day that the managing entity contract is entered into) does not alter our finding. While we have found that a contract can be "within one's responsibility" when it is within the responsibility of one's public agency subordinate (CEO 07-16), we also find, factually, under the situation you present, that your work for the corporation will not be in connection with these current ("old," soon-to-be-terminated) contracts. Rather, we find that your private work will be in connection with the to-be-awarded managing entity contract and the new subcontracts that you will be involved with negotiating between behavioral health providers and the corporation. See CEO 06-3 (note 6) and CEO 07-10, in which we found that the prohibition of Section 112.3185(4) is specific to particular contracts (that it does not encompass entire programs or subject matters).⁷

In order for a former employee to be restricted by Section 112.3185(5), which restricts the amount of money he or she can be paid by his or her former public agency within the first year after leaving State employment, we have found that the employee must be employed by the former public agency or must contract with the former agency (either as an individual, natural person or through his or her closely-held entity). We have not found that the restriction applies to situations, such as the one you present, where the former employee is privately employed arms-length by a bona fide entity; rather, we have found such situations to merit analysis only under Sections 112.3185(3) and (4). CEO 05-13.

Therefore, we find that you are not subject to the restriction of Section 112.3185(5).

Section 112.313(9)(a)4 prohibits former Selected Exempt Service (SES) public employees, of which you were one until June 30, 2011, and certain other former public employees, from personally "representing" (defined above) another person or entity for compensation before the former employee's former public "agency," for two years following the employee's vacation of his or her SES position or other position covered by the statute.

In view of your DCF SES employment history, which includes your working in DCF's Circuit 18 SAMH Program Office, which has been combined with other Circuit SAMH Program Offices to comprise DCF's current Central Region SAMH Office (with the Central Region SAMH Office housing the same functions as the former Circuit 18 Office), we find that you are restricted by Section 112.313(9)(a)4 from "representation" contact with all of DCF's Central Region, but not with other Regions of DCF,⁸ and we find that you are prohibited from "representation" contact with DCF's Tallahassee SAMH Office and Tallahassee SAMH staff.⁹ This finding is in accord with our recent decision (CEO 11-10), in which we found that the "agency" of a former Florida Department of Transportation (FDOT) employee was his particular FDOT District, and not the whole of FDOT, and is in accord with CEO 11-21, in which we found that a former FDOT employee had two parts (Districts) of FDOT as his "agency," due to his public employment presence at both. Similarly, you certainly were employed by DCF and your work history reveals that you had a presence at both the SAMH office which is now housed in DCF's Central Region and at the Tallahassee SAMH office. In CEO 11-10, we explained:

Regarding the two-year ban, it is obvious that it is intended to prohibit a former employee from putting his presence, advocacy, and submissions before the government place he inhabited and the persons who remain there.

In sum, regarding Section 112.313(9)(a)4, we find that you are prohibited for a period of two years from June 30, 2011 from personally having any contact with DCF Central Region, with DCF SAMH Tallahassee Program Office, or with staff of either, within the meaning of "representation,"¹⁰ including but not limited to attending negotiations with Central Region or with the Tallahassee SAMH Program Office, in behalf of the corporation, or in behalf of any other person or entity for compensation.

Your inquiry is answered accordingly.¹¹

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 2, 2011 and RENDERED this 7th day of December, 2011.

____________________________________

Robert J. Sniffen, Chairman

^[1]Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).

^[2]Herein, we have consolidated the substance of your four numbered questions into one.

^[3]Also known as the Department of Children and Families.

^[4]You state that neither you nor any relative of yours owns any equity interest in the corporation, that neither you nor any relative of yours is an officer or member of the board of directors of the corporation, and that your only status with the corporation is that of an employee.

^[5]You relate that "managing entity services" do not involve provision of direct care but, instead, consist of administration of service contracts for mental health and substance abuse services using State and federal funds, and that managing entity services are "contractual services" within the meaning of Chapter 287, Florida Statutes.

^[6]Unlike the restriction of Section 112.3185(4), the restriction of Section 112.3185(3) can apply to contracts not entered into until after one leaves state employment, provided that one had the requisite personal and substantial development/procurement role regarding the contract. CEO 11-20 (note 5). Also, unlike the restriction of Section 112.3185(4), the restriction of Section 112.3185(3), when all of its other elements are met, can last for more than two years.

^[7]Your inquiry mentions the possible "waiver" regarding Sections 112.3185(3) and (4) available under certain circumstances. Such a waiver is not needed under the facts you present. However, such a waiver is the province of the agency head; we cannot grant such a waiver. See the text of the statutes.

^[8]DCF's website (http://www.dcf.state.fl.us/samh/) states:

The Department's SAMH program headquarters are located in Tallahassee. Substance abuse and mental health services are delivered locally through contracts with community substance abuse and/or mental health providers. SAMH services are administered throughout 20 circuits statewide, which are grouped into six regions.