POSTEMPLOYMENT RESTRICTIONS

DCF FORMER ASSISTANT SECRETARY EMPLOYED BY DCF CONTRACTOR

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

SUMMARY:

A former employee of the Department of Children and Families (DCF) would not be prohibited under Section 112.3185(3) or (4), Florida Statutes, from accepting employment with a company that has DCF contracts, through application of Section 112.316, Florida Statutes, to the particular facts presented. CEO 12-20, CEO 07-16, and CEO 01-6 are referenced. ¹

QUESTION:

Would Section 112.3185, Florida Statutes, prohibit your holding employment or a contractual relationship, after you leave public employment with the Department of Children and Families, with a company in connection with contracts for which you were not personally and substantially involved in procurement, but which are among several legislatively-mandated Community-Based Care contracts with which your Department subordinates were somewhat involved in oversight?

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

In your letter of inquiry, additional information supplied to our staff, and telephone conversations between you and our staff, you relate that since 2002, you have been employed with the Department of Children and Families (DCF). You further relate that, in recent years, you have served in several roles, including as General Counsel (June 2014-December 2017) and Interim Secretary (September 2018-January 14, 2019). From December 2017 through August 2018, you served in your current role as Assistant Secretary of Operations—recently resuming this role when a full-time Secretary was named. You relate that in your role as Assistant Secretary of Operations, as well as while previously serving as Interim Secretary, you managed six Regional Managing Directors (RMDs),² who not only sign the contracts held with legislatively-mandated Community-Based Care (CBC) lead agencies³, but also work on the specific performance of these same contracts.⁴ You further relate that your present DCF responsibilities include supervision of agency operations for approximately 7,000 employees and programs in all 67 Florida counties under an annual agency budget of approximately 3.2 billion dollars.

You relate that the lead CBC agency for the Sixth and Thirteenth Judicial Circuits, Eckerd Connects (Eckerd), has offered you a position as Vice President (VP) of Community-Based Care at Eckerd. As VP, you relate that you would be assisting the chief of the CBC (an Eckerd employee) in the coordination, integration, and management of child protective services in both Circuits, as well as his overall efforts to improve the system for the children in care. You further relate that the position at Eckerd would include responsibilities in connection with the company's contracts for contractual services with DCF in both Circuits.

With respect to the Thirteenth Judicial Circuit, you relate that the original contract between DCF and Eckerd took effect on July 1, 2012, was renewed in June of 2017, and will expire in June of 2020.⁵ You relate that although you were serving as legal counsel for the DCF SunCoast Region—where the Eckerd contract exists—when the original contract took effect, you did not participate, directly or indirectly, in the solicitation, procurement, approval or signing of the contract. You further explain that in 2011, when the contract was originally awarded, you were not working in the SunCoast Region. Rather, you were serving as Assistant Region Legal Counsel in the DCF Northwest Region (Tallahassee) and were specifically assigned to handle only matters in the Northwest Region, whereby you were unaware of the existence of Eckerd and any contractual relationship that it had with DCF. You also relate that you did not participate, directly or indirectly, in the solicitation, procurement, approval or signing of the present contract, which took effect while you were serving as General Counsel for DCF.

With respect to the Sixth Judicial Circuit, you relate that Eckerd originally became a contracted lead agency with DCF in July 2008, when you were an Assistant General Counsel, and it subsequently renewed its contract with DCF on or about July 1, 2014, shortly after you began your role as General Counsel for DCF, and that the renewed contract will expire on June 20, 2019. You explain that you had no involvement with the July 2008 contract nor oversight of any employees who had involvement. Regarding the July 2014 contract renewal, you also relate that you did not participate, directly or indirectly, in the solicitation, procurement, approval or signing of the contract, and that the contract would have been reviewed by the legal department prior to you becoming General Counsel in June of 2014.

Two provisions of the Code of Ethics for Public Officers and Employees are relevant to your inquiry. The first is Section 112.3185(3), Florida Statutes, which states:

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) contains a restriction, that is unlimited in duration, on former public employees holding employment or a contractual relationship with a business entity in connection with any contract in which the employee participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation while an employee. However, because you relate that you did not have any involvement with the procurement, development, award, or approval of the existing contracts between DCF and Eckerd, your prospective employment with the contractor (Eckerd) would not be restricted by this statute. In CEO 12-20, we opined that a similarly-situated DCF Assistant Secretary would not be subject to Section 112.3185(3) where he had not participated in the procurement of a DCF contract with his prospective new employer—a CBC lead agency.

The second provision of the Code of Ethics that is relevant to your inquiry 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.

Section 112.3185(4) sets out a two-year restriction on former public employees holding employment or a contractual relationship with any business entity in connection with any contract for contractual services which was within the employee's responsibility. You do not dispute that the contracts between DCF and Eckerd are apparently contracts for contractual services, as defined in Section 287.012(8), Florida Statutes.⁶ You further acknowledge that your responsibilities as VP of Community-Based Care at Eckerd would be "in connection with" the present DCF contracts. Therefore, as in CEO 12-20, the remaining issue is whether the relevant contracts were "within your responsibility," as an employee of DCF. We have previously determined that "within responsibility" includes situations in which you personally monitored or managed a contract and situations in which your subordinates monitored or managed. See CEO 07-16 and CEO 01-6.

You relate that although you see the performance reports of every CBC lead agency, you are not personally responsible for the oversight and performance of the associated contracts and you have never signed or made decisions regarding either Eckerd contract.⁷ Notwithstanding that the present contracts between Eckerd and DCF were signed by the RMDs prior to your becoming Assistant Secretary of Operations, based upon you being within the ultimate chain of supervision above the RMDs and DCF contract monitors and that, as part of your duties, you are informed of serious issues that may occur related to CBC contractors, including Eckerd, we find that the relevant contracts fall within your responsibility. As a result, upon leaving DCF, you would be restricted by Section 112.3185(4)—if applied in isolation—from working for your prospective employer on these contracts.

However, the particular circumstances of your inquiry include the following facts: The relevant contracts were negotiated, entered into and signed by persons other than you. When the Eckerd contracts were signed, you did not manage or monitor any DCF employee—including a RMD—who had oversight or signatory authority over the contracts. Unlike your former colleague, the Assistant Secretary in CEO 12-20, you have never served as a Managing Director of any DCF Region, whereby you would be directly responsible for subordinates who monitored quality and operations related to all DCF contracts within the particular region.⁸ However, like your former colleague (the requestor of CEO 12-20), you similarly represent that since becoming Assistant Secretary for Operations in December 2017, you have not routinely reviewed corrective action plans or related information regarding the contracts or matters related to your prospective employer. You also relate that the relevant contracts are primarily monitored within DCF by a Contract Oversight Unit, which reports to the DCF Contracted Client Services Director and a Fiscal Monitor Unit, which reports to DCF's Chief Financial Officer, and that both units ultimately report to the Assistant Secretary for Administration. Therefore, as we found in CEO 12-20, these factors lend themselves to the application of Section 112.316. Florida Statues, which states:

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.

Based upon the foregoing, and in light of the remarkably similar circumstances presented in CEO 12-20, vis-à-vis the circumstances presented in your inquiry, we believe that it is appropriate to apply Section 112.316 to negate the restriction that would arise in your situation via the literal language of Section 112.3185(4).

Accordingly, under the specific circumstances of your inquiry, we find that you are not restricted by Section 112.3185, Florida Statutes, from working after you leave DCF employment in connection with the contracts between Eckerd and DCF.⁹

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on March 8, 2019, and RENDERED this 30th day of January, 2019.

____________________________________

Guy W. Norris, Chair

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

^[2]You relate that these six RMDs are responsible for all 67 counties in the state.

^[3]You explain that DCF holds contracts with entities to operate as lead CBC agencies in each of the Judicial Circuits.

^[4]During conversations with our staff, you indicated that DCF's Secretary, not the RMDs, has the ultimate authority over the contracts.

^[5]During conversations with our staff, you indicated that the "[u]pon renewal in 2016" reference in the second paragraph of your letter dated January 14, 2019, is a typographical error.

^[6]"Contractual service" means the rendering by a contractor of its time and effort, rather than the furnishing of specific commodities. The term only apples to those services rendered by individuals and firms who are independent contractors. [Section 287.012(8), Florida Statutes.] See also, Section 287.012(8), for specific examples.

^[7]During conversations with our staff, you related that the RMDs make recommendations regarding contract renewals for the CBC lead agencies to the Secretary.

^[8]In CEO 12-20, one of the factors that we considered in applying Section 112.316, Florida Statutes was that the employee's oversight of supervisors of the relevant contract as Central Region Managing Director was limited to a ten-week period (prior to him becoming Assistant Secretary of Operations in September 2011), and nearly half of the two-year limitation period (which would have ended in September 2013) related to that position under Section 112.3185(4) had already lapsed by the time we considered the matter in August 2012. Here, the requestor of the instant opinion had no time period of involvement as a Managing Director (or any other position) where she would have had similar oversight of supervisors of the relevant contracts.

^[9]You have indicated you understand that Section 112.313(9)(a)4, Florida Statutes, would prohibit you from personally "representing" your employer for compensation before DCF for two years following the vacation of your DCF position. "Represent" is defined in Section 112.312(22) as "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." Note that this definition is very broad, including almost all contact on behalf of your prospective employer with DCF or its personnel for the two-year period, unless the contact is limited to rote, mechanical contact necessary to deliver or perform a contract, and is not made in an effort to get DCF or its personnel to do or not do something. Also note that Section 112.313(8), Florida Statutes, which prohibits the use of "inside information" gained by virtue of public position, remains applicable even after you leave public employment. See CEO 12-20, footnote 12.