CEO 86-23 -- March 20, 1986

CONFLICT OF INTEREST

FORMER DEPARTMENT OF CORRECTIONS EMPLOYEE PROVIDING CONSULTING SERVICES TO DEPARTMENT

To: (Name withheld at the person's request.)

SUMMARY:

No prohibited conflict of interest would be created were the former Assistant Secretary for Programs of the Department of Corrections to provide technical consulting services as a member of a project team of a firm receiving a contract from the Department to provide medical inspections of county jail facilities. Neither would Section 112.3185(3) nor (4), Florida Statutes, apply, as the employee had no responsibility in the development or award of the contract. As the amount of money received by the former employee under the contract would not exceed his annual salary as an employee, Section 112.3185(5), Florida Statutes, would not be applicable.

QUESTION:

Would a prohibited conflict of interest be created were you, formerly the Assistant Secretary for Programs of the Department of Corrections, to provide technical consulting services as a member of a project team of a firm receiving a contract from the Department to provide medical inspections of county jail facilities?

Your question is answered in the negative.

In your letter of inquiry you advise that you have resigned your position as Assistant Secretary for Programs of the Department of Corrections to establish a private consulting firm. The duties of the Assistant Secretary for Programs are specified in Section 20.315(7), Florida Statutes; these duties include developing and planning service programs but do not involve line authority over any service program operations of the Department.

You also advise that the Department has issued a request for proposals to provide medical inspections of county jail facilities. The Department's Office of Inspector General, which reports directly to the Secretary of Corrections, has the responsibility for setting and enforcing jail standards under Chapter 951, Florida Statutes. The request for proposals was developed by the Office of Inspector General in cooperation with the Department of Health and Rehabilitative Services. As Assistant Secretary for Programs, you had absolutely no involvement in developing the request for proposals, either directly or indirectly, and no person within the Office of Assistant Secretary for Programs was involved in this effort.

You advise that you have discussed the possibility of providing technical consulting services as a member of the project team of another firm which intends to submit a proposal to provide services in the area of medical inspections of local detention facilities. The request for proposals provides that if a contractor has a contractual relationship with a detention facility, the Department will require the contractor to hire an impartial contractor approved by the Office of Inspector General to inspect that detention facility, with inspection reports being sent directly to and all follow-up being directly handled by the Office of Inspector General. Although the proposed lead firm does not have a contract with a local detention facility, the proposal will indicate a willingness to comply with this provision as a client of your firm does provide health services in five county detention facilities.

The Code of Ethics for Public Officers and Employees provides post-employment restrictions in Section 112.3185(3), (4), and (5), Florida Statutes, as follows:

(3) No agency employee shall, 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.

(4) No agency employee shall, within 2 years of 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 responsibility while an employee.

(5) The sum of money paid to a former agency employee during the first year after the cessation of his responsibilities, by the agency with whom he was employed, for contractual services provided to the agency by him, shall not exceed the annual salary received by him on the date of cessation of his responsibilities. The provisions of this subsection may be waived by the agency head for a particular contract if the agency head determines that such waiver will result in significant time or cost savings for the state.

Here, you have advised that neither you nor any person within the Office of Assistant Secretary for Programs was involved in developing the request for proposals for medical inspections of county jail facilities. For this reason, it is apparent that neither Section 112.3185(3) nor Section 112.3185(4) is applicable, as your proposed consulting services would not be in connection with a contract in which you participated personally and substantially or which was within your responsibility while an employee of the Department of Corrections.

Finally, in a telephone conversation with our staff you advised that you anticipate that your compensation for the consulting services which would be provided to the firm would be a share of the profits accruing to the firm from the contract with the Department, but that the amount of money you would receive would not exceed your annual salary on the date you left the Department. Under these circumstances, the limitation of Section 112.3185(5) would not be applicable.

Accordingly, we find that no prohibited conflict of interest would be created were you to provide technical consulting services as a member of a project team of a firm receiving a contract from the Department of Corrections to provide medical inspections of county jail facilities.