POSTEMPLOYMENT RESTRICTIONS

DCF CONTRACT MANAGER ACCEPTING EMPLOYMENT WITH
ENTITY CONTRACTING WITH DCF

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

SUMMARY:

Section 112.3185(4), Florida Statutes, would prohibit, for two years, a former Department of Children and Families employee from accepting private employment with a managing care entity because the prospective employment would be in connection with a contract for contractual services which was within the employee’s responsibility while at DCF. Referenced are CEO 12-20, CEO 11-24, CEO 07-16, CEO 00-09, and CEO 95-19.

QUESTION:

Would Section 112.3185(4), Florida Statutes, prohibit you from leaving public employment with the Department of Children and Families (DCF) and accepting private employment in connection with a contract for contractual services for which you have responsibilities at DCF?

Your question is answered in the affirmative.

Your correspondence with our staff states that you serve as a contract manager at the Department of Children and Families (DCF), a Career Service position. You relate that you are involved in monitoring DCF’s contract with a managing care entity, Central Florida Cares Health Systems, Inc. (hereinafter the corporation). You state that the corporation has contracted with DCF to provide mental health and substance abuse services throughout DCF’s Central Florida Region. You relate that DCF distributes funds to the corporation, and the corporation, in turn, disburses those funds to various subcontractors who provide the services to recipients. The information you submit states that your role as a DCF contract manager requires you to engage in “active oversight” of the corporation’s performance of the contract to ensure that it is fulfilling all of its duties and obligations.

You relate that the corporation recently has offered you employment as a contract manager. In this capacity, you would leave DCF and work full-time for the corporation. You state that your chief responsibility as a contract manager for the corporation would be to manage its subcontractor network—procuring and negotiating contracts between the corporation and various subcontractors, providing training to the subcontractors, and monitoring contract performance by the subcontractors, among other duties. You also relate that the corporation would like you to perform strategic planning, assist in building and improving its data system, develop and improve procedures regarding how new vendors are entered into its accounting system, and participate in grant writing for new business. You emphasize the offered position will not require you to interact with or make any requests of DCF. However, you state that the majority of your work will involve managing subcontractors who are providing services for the corporation under its contract with DCF, which is the same contract you oversee as a DCF employee.

You inquire whether Section 112.3185(4), Florida Statutes, will prohibit you from leaving DCF employment and accepting the proposed employment with the corporation. As explained below, we find that the statute prohibits you from accepting such employment. ¹

Section 112.3185(4), Florida Statutes, provides:

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.

The provision prohibits you from being employed with any business entity for two years after your departure from DCF when your employment is in connection with any contract for contractual services which fell within your responsibility while you were a DCF employee. The contract between DCF and the corporation requires the corporation to use DCF funds to provide mental health and substance abuse services. The corporation’s entire business hinges around performing its duties and responsibilities under this contract. We have found in the past that this type of contract is for “contractual services.” See CEO 11-24 (finding a former DCF employee could work for the corporation without violating Section 112.3185(4), as the managing entity contract in question had not yet been awarded and, therefore, did not fall within the employee’s responsibilities at DCF). Moreover, there is no doubt that the contract between DCF and the corporation falls “within your responsibility” as a DCF employee, as you currently manage the day-to-day performance of the contract. Therefore, the only question remaining is whether your prospective employment for the corporation is “in connection with” its contract with DCF, thereby triggering the restriction of Section 112.3185(4).

You emphasize that if you accept this employment offer, you will not be interacting with DCF, but only will be managing the corporation’s subcontracts. However, the information you have provided indicates that each of the subcontracts relates to the corporation’s prime contract with DCF (the contract you oversee as a DCF employee), inasmuch as the subcontractors will perform tasks and duties that allow the corporation to fulfill its contractual obligations to DCF. Thus, we find that your prospective employment unavoidably would be “in connection with” the corporation’s contract with DCF, which you currently manage. See CEO 07-16, note 3 (the restriction of Section 112.3185(4) applies even when an employee accepts work with a subcontractor rather than the entity contracting with the former public agency, where the actual post-public-employment work is connected to the agency contract). Therefore, we find that Section 112.3185(4) restricts your post-DCF employment regarding the corporation for two years after you leave DCF.

In the past, and in response to unique circumstances, the Commission has applied Section 112.316, Florida Statutes, to negate a strict application of Section 112.3185(4). Section 112.316 provides:

CONSTRUCTION.—It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.

In CEO 12-20, a private company offered employment to a DCF employee who had previously supervised agency employees assigned to manage a contract between DCF and the company. We applied Section 112.316 due to a series of unique factors not present here, such as the fact that the DCF employee only supervised the contract managers for a ten-week period, that the employee had been promoted to a position without such supervisory duties nearly a year before, and that the contract between DCF and the company was being monitored by individuals over whom the employee had no influence. In CEO 07-16, we applied Section 112.316 to negate the application of Section 112.3185(4) because, in part, the public employee had a relatively short tenure at the agency and had no role in managing the contract between the agency and the prospective employer, and, in CEO 95-19, we applied Section 112.316 to negate the application of Section 112.3185(4) because, in part, the employee’s public position was non-discretionary in nature and did not create an opportunity to extend beneficial treatment to a prospective employer.

In contrast, we do not see in your circumstances a basis for applying Section 112.316. Your employment with the corporation would require you to work with subcontractors who are performing tasks and responsibilities directly related to the DCF contract which you currently manage. ²

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on December 11, 2015, and RENDERED this 16th day of December, 2015.

____________________________________

Stanley M. Weston, Chair

^[1]Since you indicate you were not involved in procuring the contract between the corporation and DCF, it does not appear that your prospective employment will trigger the prohibition of Section 112.3185(3), Florida Statutes, which permanently bars former public officers from accepting employment “in connection with any contract” which they helped to procure. Similarly, the prohibition of Section 112.313(9)(a)4., Florida Statutes, will not apply. This provision restricts certain state employees from representing persons or entities before their former agencies for two years after they leave public employment. However, Section 112.313(9)(a)4. does not apply to former Career Service employees, such as yourself. See CEO 00-09.

^[2]It should be noted that if the current contract between DCF and the corporation expires and a new contract is issued, Section 112.3185(4) will not prohibit you from accepting employment related to the newly-issued contract, so long as you have not had responsibility for the new contract in your DCF capacity. In that case, your work for the corporation will not be in connection with the “old” contract which it had with DCF, and which was within your DCF responsibilities, but rather with the separate and “newly awarded” contract. See CEO 11-24.