CEO 91-67 -- December 6, 1991

CONFLICT OF INTEREST

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

EMPLOYEE OFFERED A POSITION WITH COMPANY

CONTRACTING WITH THE DEPARTMENT

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

SUMMARY:

No prohibited conflict of interest would be created pursuant to either Section 112.3185(3) or (4), Florida Statutes, if a Senior Human Services Program Specialist employed with a Department of Health and Rehabilitative Services district medicaid transportation program were to accept an employment offer with a company under contract with her district program office, as long as her responsibilities with the company have nothing to do with the contracts that she either drafted or was responsible for in her position with the Department. Her new duties would involve "representing the company on transportation disadvantaged issues and preparation of responses to requests for proposals." Because her responding to requests for proposals would have nothing to do with existing contracts, no conflict would be created. Also, as long as the transportation disadvantaged issues that she would be representing the company on have nothing to do with the existing contracts that the company has entered into with her district's program office, then any representation by her would not create a conflict. Finally, because she is neither in a Senior Management nor Select Exempt position, or in a position having the power normally conferred upon such position, Section 112.313(9)(a), Florida Statutes, would not prohibit her from representing the company before the Department for a period of two years following her leaving her position with the agency.

QUESTION:

Would a prohibited conflict of interest exist were you, a Human Services Specialist employed by District X of the Department of Health and Rehabilitative Services and responsible for planning, coordinating, implementing, and monitoring the medicaid transportation program, to become employed by a company under contract with your district office to represent it on transportation disadvantaged issues and preparation of requests for proposals in four districts of the Department?

Your question is answered in the negative, subject to the limitation noted below.

In your letter of inquiry and letter responding to staff's questions, you advise that you are employed as a Human Services Program Specialist with the Department of Health and Rehabilitative Services District X Medicaid Program Office under the direct supervision of the District X Medicaid Program Administrator. In that position, you advise that you are responsible for, among other things, planning, coordinating, implementing and monitoring the medicaid transportation program. With respect to this program, your specific duties include:

1. Developing, coordinating and implementing transportation contracts;

2. Developing monitoring plans for the District's medicaid transportation program, and monitoring the District's transportation program implementation and expenditures;

3. Performing periodic performance assessments and developing strategies for correction of the program's deficiencies;

4. Preparing budgets relative to the District's medicaid program transportation activities, resolving the program's day to day operational problems, and providing assistance to transportation providers and clients to facilitate claims payments; and

5. Coordinating transportation policy planning with state and local officials.

You advise that you do not have the authority to award any contracts.

You advise that you have received an employment offer from one of the current contract providers. Your job duties would include "representing the company on transportation disadvantaged issues and [preparing] responses to requests for proposals in four districts of the Department." You are concerned about whether the Code of Ethics would prohibit you from accepting this offer. The Code of Ethics provides in relevant part:

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(3), Florida Statutes.]

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. [Section 112.3185(4), Florida Statutes.]

For purposes of this section, "contractual services" is defined as set forth in Section 287.012, Florida Statutes. See Section 112.3185(1)(a), Florida Statutes. Thus, although the subject matter of the contract with the Department of Health and Rehabilitative Services is transportation services for qualified medicaid recipients in connection with their treatment programs, there is nothing to indicate to us that these transportation services are excluded from the definition of "contractual services" pursuant to Sections 287.012(b)5., (b)6., (b)7., or (b)9., Florida Statutes. In fact, staff was informed by counsel for the Department's Medicaid Program that these contracts are subject to Chapter 287's bid process.

Section 112.3185(3), Florida Statutes, restricts the employment which you may seek after leaving the Department by prohibiting you from being employed by a business entity in connection with a contract in which you participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation. See CEO 83-8. Section 112.3185(4) also would prohibit you from being employed in a non-agency capacity in connection with any contract for services which was within your responsibility as an employee of the Department of Health and Rehabilitative Services during the two-year period following your leaving your position with the Department. In CEO 82-67, we noted that Section 112.3185(4) differs from Section 112.3185(3) in three 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, such as the medicaid program transportation services offered here.

Although you have not specified what your job responsibilities would be with the private employer, i.e. what "representing the company on transportation disadvantaged issues" means, we find that as long as you are not "representing the company" in connection with any contract that you drafted or had anything to do with as an employee of HRS, you would not be prohibited from being employed in this capacity. We also find that the other responsibilities of preparing responses to requests for proposals in four districts of the Department would not be in connection with any existing contract, but would be done by you in anticipation of the company's entering into future contracts with the Department; therefore, we are of the opinion that you would not be prohibited from responding to requests for proposals on behalf of the private employer. In any event, we assume that your preparing responses to requests for proposals for the three districts other than District X would not have created a conflict because you had nothing to do with any of those districts' contracts.

You also should be aware that Section 112.313(9)(a), Florida Statutes, prohibits certain designated public employees from representing another person or entity for compensation before their agencies for a period of two years following vacation of their positions, unless they are employed by another agency of State government. For purposes of this provision, "employee" is defined to include any person in the executive branch of government holding a position in the Senior Management Service as defined in s. 110.402, any person holding a position in the Selected Exempt Service, and any person having the power normally conferred upon these positions. Because it does not appear that you are in a Senior Management or Select Exempt position, or in a position having the power normally conferred upon such positions, we find that Section 112.313(9)(a) does not apply to you.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from being employed either to represent a company on transportation disadvantaged issues, as long as the representation does not involve any contract that you were involved with as an employee of the Department of Health and Rehabilitative Services, or to prepare responses to requests for proposals in four districts of the Department.