CEO 84-91 -- August 30, 1984

CONFLICT OF INTEREST

FORMER D.H.R.S. EMPLOYEE EMPLOYED BY CORPORATION PROVIDING MANAGEMENT SERVICES FOR STATE HOSPITAL

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

SUMMARY:

The Code of Ethics would permit the Assistant Alcohol, Drug Abuse and Mental Health Program Staff Director of the Department of Health and Rehabilitative Services to leave the Department for employment with a corporation which has contracted with the Department through its District IV Office to provide management services for a state hospital. As the employee played no role in the procurement or the development of the contract for the Department, and as the contract was not within his responsibility while a Department employee, Section 112.3185, Florida Statutes, would not prohibit his employment with a corporation contracting with the Department.

QUESTION:

Would the Code of Ethics for Public Officers and Employees be violated were you, the Assistant Alcohol, Drug Abuse and Mental Health Program Staff Director of the Department of Health and Rehabilitative Services, to leave the Department for employment with a corporation which has contracted with the Department through its District IV office to provide management services for a State Hospital?

Your question is answered in the negative.

In your letter of inquiry you advise that currently you are employed by the Department of Health and Rehabilitative Services as Assistant Alcohol, Drug Abuse and Mental Health Program Staff Director. In that position you are responsible for assisting the staff director in establishing, tracking, and evaluating mental health program goals, objectives, and priorities, and in providing professional guidance, expertise, and advice to the Department. You also are responsible for coordinating office activities and directly supervising the administrators and supervisors of the Alcohol, Drug Abuse and Mental Health Program Office; and for providing program planning, development, evaluation, monitoring, staff development, and technical assistance to the mental health system.

You also advise that you have been offered a position as assistant hospital administrator with a private corporation which has contracted with the Department through the District IV office to manage the Northeast Florida State Hospital. The Hospital is a mental health hospital facility which is accountable administratively to the District IV Administrator.

The Code of Ethics for Public Officers and Employees 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 (1983).]

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).]

Section 112.3185(3) prohibits you from leaving your employment with the Department for employment with a business entity in connection with a contract in which you participated personally and substantially in the manner described. We have advised previously, in CEO 83-8, that this provision applies to participation in the procurement or development of the contract. You have advised, however, and your superiors in the Department have confirmed, that you played no role in the Department's decision to contract for the management of the Hospital, the decision to issue the contract with the corporation, or in the procurement or development of the contract.

Section 112.3185(4) prohibits you from employment with a business entity within two years of leaving the Department if that employment is in connection with any contract for contractual services which was within your responsibility while a Department employee. We find that this provision also would not prohibit your proposed employment. As noted above, you were not involved in the procurement or development of the contract between the corporation and the Department. In addition, you have advised that your only involvement with the corporation along the lines of contract management has been your appointment to a bid evaluation committee to review proposals for the management of the South Florida State Hospital. You advised that the corporation submitted a proposal, but that you were not involved in making any recommendations concerning the corporation because its proposal was the only one submitted. Finally, you have advised that the corporation's contract is not one for "contractual services," as Section 287.012(4)(b)5, Florida Statutes, exempts from the definition of "contractual service" health services involving examination, diagnosis, treatment, prevention, medical consultation, or administration.

Accordingly, we find that the Code of Ethics would not prohibit you from leaving your employment with the Department of Health and Rehabilitative Services for a position as assistant hospital administrator with the corporation under its contract with the Department.