POST-EMPLOYMENT RESTRICTIO

FORMER STATE UNIVERSITY EMPLOYEE
WORKING IN CONNECTION WITH UNIVERSITY CONTRACT

To:        Name withheld at person’s request (Tallahassee)

SUMMARY:

Absent waiver, a former medical director of a State university health service is prohibited under Section 112.3185(4), Florida Statutes, for two years after the date of her retirement from her university position from being employed or contracting with a private medical laboratory in connection with a university contract for which she had responsibility as a university employee. CEO 08-14 and CEO 06-3 are referenced.

QUESTION:

Does the Code of Ethics prohibit a former medical director of a State university health service from working with a private medical laboratory in connection with a contract between the laboratory and the university under which she also had responsibility while employed as the university health service medical director?

Under the circumstances presented, your question is answered in the affirmative, absent a waiver.

In your letter of inquiry and telephone communications with our staff, you have requested an opinion as to whether restrictions under the Code of Ethics would apply to your prospective work with a medical laboratory company which would be a continuation of your position as laboratory medical director that you held along with your former position as university health services medical director.

You state that, prior to your retirement on June 30, 2014, you had been employed by a State university health service since 1988 and had served as its medical director for more than 15 years. You state that you now would like to work part-time, approximately one hour a week, at the same university health service but only as laboratory medical director for which you would be compensated (as an independent contractor) by a private medical laboratory. You relate that, prior to your retirement from the university, you performed the function of laboratory medical director which was not part of your medical director’s job description, but which was part of what you did in your employment with the university health service and which related to a contract with the laboratory which still continues. You state that the procurement of the medical laboratory’s contract with the university was performed by others within the university and that your involvement was limited to answering questions as to the laboratory functions. You state that you would like to assist the university medical service and also keep up your own skills in this area by continuing to work part-time with the private laboratory as laboratory medical director for the university medical service. You further state that you believe you are the only individual in the immediate geographical area who is qualified to take on the responsibility of overseeing the medical laboratory and that if the medical laboratory company were to bring in a new laboratory director, the cost for laboratory services to the university and its students would increase.

There are two statutory provisions to consider. Section 112.3185(3), Florida Statutes, 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.

This statute prohibits you from working for an entity (prime contractor, subcontractor, or other) in connection with a contract where you were personally and substantially involved in the procurement of the contract in your public position.¹ You state that you were involved only marginally, not substantially, in procuring the university health services contract with the medical laboratory company. Thus, your prospective contract with the medical laboratory company apparently would not violate Section 112.3185(3), Florida Statutes.

Also relevant to your situation is Section 112.3185(4), Florida Statutes, which states:

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.

“Contractual services,” as referenced in Section 112.3185(1)(a), Florida Statutes, is defined in relevant part as:

[T]he rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports on the findings of consultants engaged thereunder; and professional, technical, and social services. [Section 287.012(8), Florida Statutes.]

This provision prohibits you, for two years from the date you left university employment, from going to work for any company or entity in connection with a contract for contractual services² which was within your responsibility while you were with the university. In CEO 06-3, we found that a former employee of the Agency for Health Care Administration (“AHCA”) was restricted under Section 113.3185(4), for two years after she left the agency, from employment with a Medicaid HMO for which the former agency employee had monitoring responsibilities during her employment with AHCA. Here, the work you would perform for the medical laboratory after leaving university employment would obligate you to perform the very same services you performed under the medical laboratory’s contract with the university health center and, thus, would be even more directly related to your previous responsibilities than was the former AHCA employee’s private employment we found in CEO 06-3 to be prohibited for two years post-public-employment. Although we recognize that your proposed continuation of your work as laboratory medical director would be far from a financial windfall for you, we find under Section 112.3185(4) that your proposed work under contract with a medical laboratory after leaving university employment clearly is in connection with the medical laboratory contract under which you worked (and had responsibility for) in your university employment.

However, we find that your situation is susceptible to a waiver of the prohibition, under the second sentence of Section 112.3185(4). While your former position of university health service medical director is not being eliminated, your position (or function) as laboratory medical director will be performed by the business entity (the laboratory for which you would work privately) and will not be performed “in-house” by a university employee. We find that this fits the intent of the waiver language, under your particular circumstances.

Accordingly, we find that the prohibition in Section 112.3185(4) applies to your situation but that it can be waived by your agency head.³

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 25, 2014, and RENDERED this 30th day of July, 2014.

____________________________________

Linda McKee Robison, Chair

^[1]In CEO 08-14, the Commission on Ethics found that employees of Florida’s public universities are employees of an “agency,” i.e., the Board of Governors of the State University System, for purposes of Section 112.3185, Florida Statutes.

^[2]We find nothing in Chapter 287, Florida Statutes, that would make the definition of “contractual service” inapplicable to the laboratory’s work with the university.

^[3]Although we found in CEO 08-14 that for purposes of Section 112.3185 the “agency” of a State university employee is the Board of Governors of the State University System, we recognize that there can be flexibility in the mechanics of such a waiver by your “agency head” vis-Ã -vis the Board of Governors’ interaction with the University, its Board of Trustees, and its administration.