POSTEMPLOYMENT RESTRICTIONS

FORMER CHIEF INSPECTOR GENERAL IN THE EXECUTIVE
OFFICE OF THE GOVERNOR CONSULTING AS TO
PROVIDER OF COMMUNITY-BASED CARE FOR DCF

To: Melinda M. Miguel (Tallahassee)

SUMMARY:

Section 112.3185(3), Florida Statutes, will not prohibit a former Chief Inspector General from working in connection with a contract regarding which she was involved in a Whistle-blower report. CEO 83-8, CEO 87-8, and CEO 08-17 are referenced.¹

QUESTION:

Would Section 112.3185(3), Florida Statutes, prohibit you, following your public employment, from working as a consultant regarding a provider of community-based care for the Department of Children and Families?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you write that you formerly served as the Chief Inspector General in the Executive Office of the Governor² and, as such, you had a role in 2011 in issuing a final Whistle-blower report which involved a corporation under review by the Inspector General of the Department of Children and Families (DCF).³ You have formed a limited liability company (LLC) through which you will provide various consulting services. In response to a request for further information from our staff, you relate that your LLC may contract with another company (Program). Under the contract, you, personally, will assess some organizational elements of the corporation that was the subject of the Whistle-blower report.⁴ You state that the Program, with which your LLC would contract and which would pay for your work, is a national foundation focused on foster care and child welfare to influence long-lasting improvements to the safety and success of children, families, and their communities, especially that of vulnerable children and their families. More particularly, you relate that your work for the Program would involve assessing organizational structure, finances, and certain operations of the corporation, and would involve providing recommendations to the corporation's incoming director. Further, you state that DCF currently contracts with the corporation for the corporation to serve as the community-based care provider in Miami-Dade and Monroe Counties.

As to your involvement in the 2011 matter concerning the corporation, you relate that you reviewed the report prepared by the DCF Inspector General, assessed the report for compliance with statutory requirements, evaluated some of the information gathered by the DCF Inspector General, and compared the reported findings to available policies established by DCF. However, you emphasize that you had no personal involvement in any award, or re-award, of any contract between DCF and the corporation, that you had no procurement, operational, or managerial decisionmaking role regarding any DCF contract, and that you had no role in designing, awarding, or managing the DCF contract with the corporation or any contract with which you may be working as a consultant.

Relevant to your inquiry is Section 112.3185(3), Florida Statutes, which 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 . . . .

In order for Section 112.3185(3) to prohibit one's post-public-service work, the work must be in connection with a contract in which one, while a public employee, participated personally and substantially in the procurement process regarding the contract. CEO 87-8.

We find that the situation described in your inquiry will not trigger the prohibition of the statute were you to perform consulting for the Program/corporation. While you did have a personal role as a State employee regarding the corporation and its contracting with DCF (via the Whistle-blower matter), it is apparent that the role was not a procurement role. Rather, it is apparent that you became involved to inspect and report on contracting designed or procured by others. We are not prepared in the context of the situation you describe to construe the statute as encompassing such limited, after-the-fact involvement. Conversely, we have expressly found that the prohibition of the statute is limited to those persons who participated in procurement of the contract, stating in CEO 83-8:

We also find that this provision would not prohibit your employment as administrator of the corporation's alcohol detoxification program because, although you did monitor the program as an employee of the Department, you had no responsibility in the procurement or development of that contract. In our view, the prohibition of Section 112.3185(3) is directed to those persons who participated in the procurement or development of a contract . . . .

See, also, among others, CEO 08-17.

Accordingly, we find that you are not prohibited by Section 112.3185(3), Florida Statutes,⁵ from engaging in the consulting described in your inquiry.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 28, 2017, and RENDERED this 2nd day of August, 2017.

____________________________________

Michelle Anchors, Chair

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

^[2]Serving January 2007 to November 2010, and February 2011 to April 2017.

^[3]Concerning misspending of funds for foster care.

^[4]In a telephone conversation with our staff subsequent to your provision of the additional written information mentioned above, you clarified that your consulting work will be an overall review or evaluation of the corporation and will not target "fixing" deficiencies identified in the Whistle-blower report, which report did not weaken the findings of DCF's Inspector General.

^[5]We also see no indication that Sections 112.3185(4), 112.313(9)(a)4., and 112.313(8), Florida Statutes, would be transgressed by the consulting.