POST-EMPLOYMENT RESTRICTIONS

FORMER DEPARTMENT OF HEALTH SENIOR ATTORNEY
REPRESENTING PERSON OR ENTITY BEFORE PARTS OR
BOARDS OF DEPARTMENT

To: Mr. Michael E. Morris (Tallahassee)

SUMMARY:

A former Selected Exempt Service employee (Senior Attorney) of the Department of Health is prohibited by Section 112.313(9)(a)4., Florida Statutes, from representing a person or entity before the Department’s Prosecution Services Unit or its Board of Medicine for two years after vacating his position. The former employee is not prohibited during this two-year period from representation before the Department’s other professional boards or in matters adverse to the Department at the Division of Administrative Hearings, provided that such representations do not include his interacting with attorneys and personnel with either the Prosecution Services Unit or the Board of Medicine. CEO 17-17, CEO 17-14, CEO 17-2, CEO 15-4, CEO 11-24, CEO 06-1, and CEO 02-12 are referenced. ¹

QUESTION:

How does Section 112.313(9)(a)4., Florida Statutes apply to you, a former Selected Exempt Service employee of the Department of Health, given your public employment history?

Your question is answered as set forth below.

In your letter of inquiry, you state you began employment with the Department of Health in June 2016 as a Senior Attorney, which is a Selected Exempt Service (SES) position. You state you were hired into the Medical Section of the Department’s Prosecution Services Unit. According to additional information you provided to our staff, including the Department’s job description for your position, it appears the Prosecution Services Unit is part of the Department’s Medical Quality Assurance Division, although it also falls under the oversight of the Office of General Counsel.²

You indicate that the Prosecution Services Unit is comprised of three sections—Medical, Nursing, and Allied—and that each section handles the prosecution of cases of its respective subject matter before Department boards. You state you were assigned to the Medical Section and handled cases before the Board of Medicine, which is a statutorily-created board within the Department of Health that hears complaints against doctors, physicians’ assistants, and electrologists. See Section 458.307(1), Florida Statutes. You indicate that the Nursing Section presents cases before the Department’s Board of Nursing, while the Allied Section presents cases to other professional boards within the Department, such as boards pertaining to dentists, massage therapists, and chiropractors. While all three sections are contained within the Prosecution Services Unit, you emphasize they operate independently and each has a separate section supervisor.

You relate that as a prosecutor, your duties in the Medical Section included making probable cause recommendations to the Board of Medicine and, if probable cause was found, preparing complaints on behalf of the Department. You indicate that if you and a practitioner could negotiate a settlement agreement concerning the complaint, you would present it to the Board of Medicine for approval. However, if a settlement agreement could not be reached, the complaint would be referred to the Division of Administrative Hearings (DOAH) where you would represent the Department at the subsequent hearing.

During your employment, you advise, you had limited to no contact with Department employees outside the Medical Section of the Prosecution Services Unit. In particular, you state that while your supervisor at the Medical Section reported to an assistant to the Department’s General Counsel, you personally had no contact with the Office of General Counsel. In addition, you indicate you had very little contact with prosecutors in the Unit’s Nursing or Allied Sections, interacting with them only at trainings or social events, and even then, rarely discussing any cases. You state you only presented cases to the Board of Medicine; you never appeared before the other Department Boards where the Nursing and Allied Sections presented cases. Additionally, you relate you rarely had contact with Department employees outside the Prosecution Services Unit except asking for the status of cases or for copies of licensing files.

Given this context, you inquire about the applicability of the post-employment restriction found in Section 112.313(9)(a)4., Florida Statutes. You indicate you recently attempted to tender your resignation, intending it to be effective on January 4, 2018. However, on December 18, 2017, before your resignation became effective, you were asked to leave the Department’s facility. You indicate your final paycheck from the Department reflects a pay-period ending on January 4, 2018.

Section 112.313(9)(a)4. provides:

An agency employee ... 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.

For purposes of this prohibition, Section 112.313(9)(a)2.a.(I), Florida Statutes defines the term “employee” to include “[a]ny person employed in the executive or legislative branch of government holding a position in the ... Selected Exempt Service ... .” The term “represent” or “representation,” as used in the statute, is defined in Section 112.312(22), Florida Statutes, to mean:

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.

As a former SES employee, the two-year prohibition applies to you. Your specific inquiries, however, concern whether your “agency” for the purpose of Section 112.313(9)(a)4. encompasses the entirety of the Department, as well as to what degree you will be prohibited from representing clients before the Department’s various boards or in litigation adverse to the Department at DOAH.³

Section 112.312(2), Florida Statutes, defines the term “agency” as “any department, division, bureau, commission, authority, or political subdivision of this state ... .” Considering this definition, we have found that a State employee’™s “agency” is not necessarily the entire department where he or she was employed, but the lowest departmental unit within which the employee’s influence might reasonably have been considered to extend. See CEO 17-17 and CEO 17-14. Accordingly, when a particular Department has divisions, we have found a bureau within the division—as opposed to the division itself—to be the employee’s agency. See CEO 15-4.

However, we have found that when an individual’s influence extends beyond the bureau where he is employed, his “agency” also could extend beyond the nomenclature of his bureau to other sections or units within the state-level department where he works. For instance, in CEO 11-24, we found the “agency” of a former employee of the Department of Children and Families to be not only the Department’s Central Region—where the employee was organizationally housed—but also the Tallahassee Substance Abuse and Mental Health Program (SAMH) Office and staff, where the employee had a presence. Similarly, in CEO 17-2, we found the “agency” of a former Senior Attorney at the Department of Revenue to be not only the Technical Assistance and Dispute Resolution Program—which was the focus of his responsibilities—but also the General Counsel’s Office and the Executive Director’s Office, as he also presented information to these entities and often interfaced on-the-job with their personnel. Finally, in CEO 17-17, we found the “agency” of a former employee of the Florida Department of Environmental Protection to be not only the Department’s Central District—where he served as a manager—but also the particular divisions and programs of the Department with which he had regular monthly interactions. In these opinions, we focused upon the portions of a state-level department where an employee had a presence and frequently or regularly interacted with personnel, finding the employee’s “agency” to be broader than just the precise bureau or unit where his responsibilities chiefly lay.

Here, we find the Prosecution Services Unit, where you were primarily situated, to be the functional equivalent of a bureau. While the Unit is not referred to as a bureau in the materials you provided, it appears to occupy that position within the Medical Quality Assurance Division.⁴ Therefore, the entire Prosecution Services Unit—including the Medical, Nursing, and Allied Sections—is your “agency” for the purpose of Section 112.313(9)(a)4. However, as previously indicated, our analysis concerning your “agency” also must consider the other parts of the Department where you had a presence or interaction. You indicate your work in the Medical Section involved presenting cases to the Board of Medicine. While you may not have been housed within the Board of Medicine, you clearly interacted with its personnel and had a presence there. For this reason, we find your “agency” includes not only the entirety of the Prosecution Services Unit, but also the Board of Medicine. Therefore, Section 112.313(9)(a)4. prohibits you during the two years after you vacated your position from representation as to the Prosecution Services Unit and the Board of Medicine. ⁵

Based on information received from a representative of the Department of Health, we are aware that the Department’s Office of General Counsel exercises general oversight authority over the Prosecution Services Unit. However, the Department’s representative also stated the Unit does not fall within the Office of General Counsel but rather is housed within the Medical Quality Assurance Division. For this reason, and considering your statement that you had no personal contact with the Office of General Counsel, we decline to find your “agency” extends to that Office. In this way, your situation is distinguishable from CEO 17-2, which involved a Department of Revenue attorney who responded to specific requests for information from the General Counsel’s Office and presented specific materials to its attorneys for their review. The contact between the General Counsel’s Office and the attorney in CEO 17-2 was of sufficient degree to find his “agency” encompassed not only his particular unit within the Department, which was separate from the General Counsel’s Office, but the entirety of the General Counsel’s Office as well. Here, considering that you never interacted with attorneys from the Office of General Counsel, we do not find your influence extended to that Office, as would be needed for it to be considered part of your “agency.”

Turning to whether you can represent individuals before other boards housed within the Department of Health, we note that your “agency” extends only to the Prosecution Services Unit and the Board of Medicine; it does not encompass the numerous other Department boards regulating health-related professions. However, we have found that a former employee is prohibited from communicating with staff of his or her former agency in the course of representing clients, even in circumstances where the employee’s former agency does not have final decision-making authority in the matter. See CEO 17-2, CEO 06-1, and CEO 02-12. This furthers the purpose of the law, which is to avoid the appearance of impropriety by prohibiting a former public employee from relying upon the personal influence and affiliation gained by virtue of his previous public employment for private gain, and to restrict interactions between a former employee and his former colleagues. See CEO 17-2 and CEO 02-12. Therefore, you are prohibited from engaging in oral or written communication, or other conduct defined as “representation,” with employees of the Prosecution Services Unit or Board of Medicine, even when representing a client before a board other than the Board of Medicine. Essentially, this will prohibit your communications with personnel of the Medical, Nursing, or Allied Sections of the Prosecution Services Unit within the two-year limitation period. ⁶

Similarly, regarding whether you can represent clients in litigation against the Department at DOAH during the two-year limitation period, our focus is upon whether such representation will require you to interact with your former agency or its personnel. If your representation in a particular matter, whatever the subject matter, will require you to communicate with attorneys and staff from either the Prosecution Services Unit or the Board of Medicine, it will constitute a prohibited “representation” before your former agency and will trigger Section 112.313(9)(a)4.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 9, 2018, and RENDERED this 14th day of March, 2018.

____________________________________

Michelle Anchors, Chair

^[1]Prior opinions of the Commission on Ethics can be viewed at www.ethics.state.fl.us.

^[2]The Department’s job description for your position states the Prosecution Services Unit is part of the Office of General Counsel, as opposed to being part of the Medical Quality Assurance Division. However, a representative from the Department’s Office of Personnel and Human Resource Management clarified that the Prosecution Service Unit falls within the Medical Quality Assurance Division and reports to the Office of General Counsel without technically being part of the Office of General Counsel.

^[3]You also inquire whether you have officially “vacated” your position as that term is used in Section 112.313(9)(a)4. The statute does not define the term “vacate,” although we find an individual is considered to have “vacated” his position when he is no longer employed by his agency. In your case, we find that you have vacated your position, although you will have to consult with the Department’s personnel office to determine what date is viewed as your last day of employment.

^[4]This finding is corroborated by the Department’s job description for your position, which states your “Bureau/Comparable” to be the Prosecution Services Unit.

^[5]In finding that your “agency” extends to the Board of Medicine, we are factually distinguishing your situation from the scenario presented in CEO 02-12. That opinion involved a former attorney with the Agency for Health Care Administration (AHCA) who wanted to appear before various boards of the Department of Health within two years of vacating her position, despite the fact that she often appeared as an AHCA employee before these boards. We found the two-year prohibition of Section 112.313(9)(a)4. would not apply in that circumstance because AHCA, where the former attorney was employed, was not within the Department of Health. In your circumstance, the Board of Medicine is part of the Department of Health; see Section 458.307(1), Florida Statutes.

^[6]Examples of such prohibited communications include making discovery requests (interrogatories, requests for production of documents, notices of taking deposition) sent under your signature to the Prosecution Services Unit or the Board of Medicine, filing documents with the Prosecution Services Unit or the Board of Medicine, and engaging in personal communications with representatives of the Prosecution Services Unit or the Board of Medicine on behalf of a client. See CEO 02-12.