CEO 82-67 -- September 20, 1982

CONFLICT OF INTEREST

FORMER EMPLOYEE OF DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES EMPLOYED BY CORPORATION CONTRACTING WITH DEPARTMENT

To: Ms. Barbara Ann Dell McPherson, District V Legal Counsel, Department of Health and Rehabilitative Services, Clearwater

SUMMARY:

No prohibited conflict of interest exists where a former District Grants Specialist for the Department of Health and Rehabilitative Services is employed as a fiscal manager by a corporation which is under contract with the Department. Section 112.3185, Florida Statutes, created by Chapter 82-196, Laws of Florida, contains certain restrictions on the employment of former State employees. Section 112.3185(4) prohibits a former employee from having any employment or contractual relationship with a business entity in connection with any contract in which he was involved personally and substantially while an agency employee. Here, the former employee's private employment is not in connection with any contract in which he participated while with the Department. Section 112.3185(5) prohibits a former employee from having any employment or contractual relationship with a business entity within two years of retirement or termination in connection with any contract for contractual services which was within his responsibility while an agency employee. Here, the former employee's private employment is not in connection with any contract which was within his responsibility while a State employee.

QUESTION:

Does a prohibited conflict of interest exist where a former District Grants Specialist for the Department of Health and Rehabilitative Services is employed as a fiscal manager by a corporation which is under contract with the Department?

Your question is answered in the negative.

In your letter of inquiry you advise that Mr. Dan Madura held the position of District V Grants Management Specialist for the Department of Health and Rehabilitative Services until his resignation effective on June 11, 1982. On June 21, 1982 he began a new job as fiscal manager with a corporation which had contracted with the Department during his tenure there. His participation in the contracts while an employee of the Department was limited to the following activities: (1) reviewing two homemaker contracts and providing technical assistance in forming those contracts; (2) reviewing invoices submitted by the corporation; (3) maintaining the contract files; (4) helping the contract manager find the proper format for amendments to the two homemaker contracts; (5) supervising budget revision; and (6) making certain that the fiscal aspects of a subcontract were correct and that the proper subcontract model was used. By telephone, your staff advised our staff that a homemaker contract is an agreement under which the corporation sends workers into homes to perform household duties for those unable to do such work themselves. Finally, the subject employee advises that he was not on any of the contract evaluation teams for any contract which was awarded to Gulf Coast for the 1982-83 fiscal year. When he began his new job with Gulf Coast, he retained the previous fiscal manager until July 6, 1982 to handle contracts with which he had been involved. All of these expired on June 30, 1982.

The Code of Ethics for Public Officers and Employees provides in part:

No agency employee who participates through decision, approval, disapproval, recommendation, preparation of any part of a purchase request, influencing the content of any specification or procurement standard, rendering of advice, investigation, auditing, or in any other advisory capacity in the procurement of contractual services shall become or be, while an agency employee, the employee of a person contracting with the agency by whom the employee is employed. [Section 112.3185(3), Florida Statutes, as created by Chapter 82-196, Laws of Florida.]

We understand this provision to prohibit an agency employee from being employed concurrently by a person or business entity which is under contract with the employee's agency, if his duties with the agency include any of those delineated in this provision. As the former employee resigned from his position with the Department prior to beginning his new job with the corporation, he has not violated this provision.

The Code of Ethics also provides:

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. [Section 112.3185(4), Florida Statutes, as created by Chapter 82-196, Laws of Florida.]

This recently-enacted ethical standard creates for the first time within the Code of Ethics a post-employment restriction applicable to former State employees. In order for this provision to apply, the former employee's new work must be "in connection" with some contract in which he participated while with the agency. His participation also must have been personal, substantial, and of the nature specifically designated in the subsection, involving while an officer or employer, a decision, approval, disapproval, recommendation, rendering of advice or investigation.

Here, the former employee has made every effort not to perform work for the corporation which is "in connection with any contract" in which he participated while with the Department. For the last two and one-half months of his employment with the Department he did not participate in the award of any of the contracts with an effective date of July 1, 1982. Furthermore, after beginning the job with the corporation on June 21, 1982, his predecessor was kept on staff to handle contracts with which he had been involved, all of which contracts are scheduled to expire on June 30, 1982. We are of the opinion that under these circumstances the former employee's new employment or contractual relationship is not in connection with any contract in which he participated while at the Department. Therefore, we find that the provisions of Section 112.3185(4), Florida Statutes, do not prohibit the employment about which you inquire.

The Code of Ethics further provides:

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 the agency employee's responsibility while an employee. [Section 112.3185(5), Florida Statutes, as created by Chapter 82-196, Laws of Florida.]

This provision differs from Section 112.3185(4) in three important ways. First, it is more limited as to the time period it governs -- specifically a two-year period following resignation or termination. Secondly, it is more general as to what activities of a former agency employee are prohibited. Thirdly, it applies only to contracts for services. Thus, this provision would be violated only if the former employee worked in a non-agency capacity during the two-year period following his employment with the Department in connection with any contract for services which was within his responsibility while at the Department. As no such work is contemplated, we find no prohibited conflict under Section 112.3185(5), Florida Statutes.

Accordingly, we find that no prohibited conflict of interest exists where the subject former employee has been employed by a corporation which is contracting with the Department of Health and Rehabilitative Services under the circumstances presented.