CEO 85-57 -- August 8, 1985

CONFLICT OF INTEREST

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

To: Ms. Shirley A. Nolen, Human Services Counselor Supervisor, District 10, Department of Health and Rehabilitative Services

SUMMARY:

Section 112.3185, Florida Statutes, would not prohibit a Human Services Counselor Supervisor with the District 10 Aging and Adult Services Program of the Department of Health and Rehabilitative Services from accepting employment with an association which has contracted with the District to provide homemaker services to the elderly, disabled, and low income earners. Here the employee was not involved in any capacity in the procurement or administration of the contracts.

QUESTION:

Would the Code of Ethics for Public Officers and Employees prohibit you, a Human Services Counselor Supervisor in the District 10 Aging and Adult Services Program of the Department of Health and Rehabilitative Services, from leaving the Department for employment with an association which has contracted with District 10 to provide homemaker services for disabled and elderly persons and low income earners, where you have no present responsibility in connection with the contract?

Your question is answered in the negative.

In your letter of inquiry you advise that currently you are a Human Services Counselor Supervisor in the District 10 Aging and Adult Services Program (AAS) of the Department of Health and Rehabilitative Services. Your job requires that you supervise the adult protective services unit of the AAS program. This includes investigation of alleged abuse, neglect, and exploitation of the elderly or disabled. You also have authority to make referrals to service providers such as the Association of clients who may be in need of homemaker services, including such things as preparing meals, buying groceries, house-cleaning, etc.

You also advise that you have been offered a full-time position by the Visiting Nurses Association, a service provider under contract with the District 10 AAS Program. Your letter further advises that in 1983 you served on the bid evaluation committee which approved a homemaker contract with the Association and that you acted on behalf of the Human Services Program Analyst in May of 1985, in her absence, to sign vouchers for payment to the Association.

In a telephone conversation with our staff you have further advised that your role in connection with the Association vouchers was limited to double-checking the mathematics computation on bills submitted for payment. This process involved multiplying the total hours of homemaker services claimed by the Association by the hourly rate of pay authorized under the contract. You advise that you were not required to verify the accuracy of the homemaker service hours claimed. The extent of time involved in your double-checking the computation was less than one hour and was performed entirely on a single occasion. You have advised our staff by telephone that you were assigned this task when your supervisor was on annual leave. While your job description makes no express provision for this type of desk audit, there is a catchall "other" category in your job description. The contract described above expired on June 30, 1985.

Beginning July 1, 1985, the Association was awarded three new contracts, one of which was with District 10. However, you advise that you did not serve on the bid evaluation committee and that you did not participate in any way in the procurement of any of these contracts. Under the first contract, the Association will provide homemaker services for disabled persons under the age of 60. Your supervisor serves as the contract manager for this contract. You advise, however, that you have no ongoing responsibilities in connection with this contract, and in light of your job offer, you would not accept any "fill-in" assignments similar to the desk audit functions you performed under the previous contract. The second contract calls for homemaker care for persons over the age of 60. You advise that neither you nor your supervisor has any responsibilities in connection with this contract. Under the third contract, the Visiting Nurses Association will be a subcontractor with the Area-wide Agency on Aging to provide homemaker services to the elderly. Neither you nor your supervisor will have any responsibility in connection with this contract.

You have further advised our staff by telephone that the job you have been offered by the Association would require that you manage their three new contracts which went into effect on July 1, 1985.

The Code of Ethics for Public Officers and Employees provides in relevant 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, or 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(2), Florida Statutes (1983).]

This provision prohibits an executive branch State employee from concurrently being employed by a business entity which is under contract with the employee's agency for "contractual services," if he participated in any capacity in the procurement of those services. As you would terminate your position with the Department prior to beginning your new job, this provision is inapplicable to your situation.

The Code of Ethics further 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(3), Florida Statutes (1983).]

Pursuant to this provision, you are prohibited from accepting employment with 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 prior to your termination. As you have not participated in any manner in the procurement or administration of the current contracts, this provision would not preclude your employment with the Association in connection with those contracts. The Code of Ethics also 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 his responsibility while an employee. [Section 112.3185(4), Florida Statutes (1983).]

This provision clearly is inapplicable to the desk audit task you performed in your supervisor's absence in May of this year as the contract in effect at that time no longer exists, and, therefore, your future employment with the Association could not, as a matter of law, be in connection with it.

We must next consider whether the new contracts are now within your responsibility by virtue of the possibility that you may be assigned to perform tasks relating to one of these contracts in the absence of your supervisor. In this regard we are mindful of the fact that job descriptions often include an "other" category which allows management the flexibility to assign miscellaneous tasks of the kind under consideration here if the need arises.

Were we to conclude that such tasks are within one's responsibility based upon the mere possibility of their being assigned at some future time, virtually every employee would be deemed responsible for all contracts with his agency. We do not believe the Legislature intended such an expansive interpretation. In accordance with this view, it is our opinion that "other" duties as yet unassigned are not within your responsibility.

Finally, we have considered whether your authority to make referrals of clients to contract providers, including the Association, brings the contract within your responsibility within the meaning of subsection (4) of Section 112.3185, Florida Statutes. We previously have determined that a contract was within an employee's responsibility where that employee had a duty to monitor an alcohol detoxification program of the contract provider, including such tasks as comparing program policies, procedures, and client records with agency requirements and certification for insurance payments. See CEO 83-8. In that case the tasks which brought the employee within the required zone of responsibility arose out of the contract's existence and were directly related to it. Such is not the case where you make referrals to a contract provider. Here the existence of the contract is incidental to your responsibility to assist clients in need of homemaker services. Under these circumstances we do not consider the VNA contracts to be within your responsibility.

Accordingly, we find that the Code of Ethics for Public Officers and Employees does not prohibit you from terminating your employment with the Department of Health and Rehabilitative Services to accept a position with the Visiting Nurses Association in which you will supervise the three homemaker contracts currently in effect.