CEO 01-6 -- March 20, 2001
POST-EMPLOYMENT RESTRICTIONS
FORMER DCF DISTRICT ADMINISTRATOR EMPLOYED BY PRIVATE PROVIDER WHOSE CONTRACT SHE APPROVED
To: Frances H. Gibbons, Former District Administrator, Department of Children and Families (Lehigh)
SUMMARY:
A former DCF District Administrator who was employed by DHRS, the predecessor of DCF, prior to 1989, is not prohibited from representing a provider of social services, whose contract she ultimately approved in her capacity as District Administrator, before the Department of Children and Families, including her former District, for a period of two (2) years following the termination of her employment with the Department. Section 112.313(9)(a)6a and b applies to exempt her from the prohibition of Section 112.313(9)(a)(4), which prohibits agency employees from representing another person or entity for compensation before the agency with which they were employed for a period of two years following vacation of their positions.
Because the former District Administrator's employment by the provider would not be "in connection with" any existing contract between the provider and the District, or "in connection with" any contract that she was involved in the procurement or development of as District Administrator, neither Section 112.3185(3) nor Section 112.3185(4), Florida Statutes, prohibits her from becoming employed as Regional Director of the provider.
QUESTION:
Would the Code of Ethics for Public Officers and Employees be violated were you, a former District Administrator with the Department of Children and Families, to become employed by a social services provider whose contract you approved as District Administrator?
Under the circumstances presented, your question is answered in the negative.
In your letter of inquiry, you ask whether the Code of Ethics prohibits you, a former District Administrator with the Department of Children and Families ("DCF") from becoming employed as Regional Director for Family Preservation Services, Inc. ("provider"), a private provider contracting with your former DCF district. You advise that you became employed by the Department of Health and Rehabilitative Services in 1976 and were promoted over the years to District Administrator of DCF District 8. As District Administrator, you advise, you supervised the delivery of services in a seven (7) county area that included two (2) major institutions and 2,750 employees.[1] You also write that you administered a budget in excess of $150 million.
You advise further that DCF contracts with private providers for the delivery of many of its services. Consequently, as District Administrator, you signed hundreds of contracts for services. However, you claim that, notwithstanding your signing the contracts, District staff determined which services to purchase and from whom they would be purchased. You neither chose the provider nor the services to buy, you write.
As required by law, DCF continues to privatize the delivery of children's services, you write. However, authority over these matters now has been transferred to newly formed community alliances which will make all future decisions about service delivery to children. You relate that, as a member of the newly formed alliances representing DCF, you had not met with any of the alliances by September 13, 2000, when you were notified by the Secretary of DCF that your services were no longer needed. You advise further that a new District Administrator was appointed to replace you prior to any meeting being held by the alliances.
We are advised that the subject provider, a private social services agency that operates in fifteen states, is relatively new to Florida. You write that it is in the process of reorganization and will hire a Regional Director for Southwest Florida, a position that you are interested in.[2] You advise that, in addition to supervising a staff of approximately 40 employees, the primary responsibilities of the Regional Director will include the following:
< Managing and administering the provider's services, including needs assessments, program development, grant writing, implementation and monitoring in accordance with the provider's policies and procedures and ensuring that the provider's services meets the needs of the local community;
< Ensuring program quality assurance by, among other things, ensuring compliance with the provider's quality improvement plan and policies and procedures, and ensuring compliance with state contract requirements and other standards set forth by other programs and other funding sources;
< Expanding the services that the private provider currently offers by working with all agencies in the area to increase referrals;
< Developing relationships with other area providers to ensure the maximum availability of services, as well as initiating strategic alliances;
< Working with community and governmental agencies to develop new services to meet identified needs;
< Providing leadership for the development, implementation and coordination of all aspects of the provider's division's/region's public relations, including building and maintaining good community relations on behalf of the provider and promoting a positive image of the provider in the community, and participating in the solicitation of funding from individuals and other sources; and
< Negotiating contracts and making proposals and presentations to funding sources on behalf of the provider.
You also advise that within the past two (2) years, the provider began delivering services to children with developmental disabilities and children in need of mental health and substance abuse services.[3] Although Medicaid reimburses the provider for many of the services it renders, some of its services are purchased through contracts with DCF and other government agencies. You have provided us with a list of five contracts between the provider and the District that originally were entered into while you served as District Administrator. If the contracts were not signed by you, they were signed for you by an acting District Administrator, you advise.
The contract for "Supervised Visitation" services, which was listed by you, already has ended, you write. You advise that the contract for "Caregiver Home Studies" services, which was scheduled to terminate on June 30, 2001, has been terminated. Similarly, the contract for "Foster Care Licensing Home Studies" services, which was scheduled to terminate on June 30, 2001, has been terminated. You advise that the contract for "Adoption Home Studies" services also has ended. Therefore, the only remaining contract between the District and the provider that was entered into while you served as District Administrator, you advise, is for the provision of "Adult and Family Substance Abuse" services. You advise that the contract originally was funded for $140,091.00 but that its funding subsequently was increased by $21,000.00. You also advise that as of February 6, 2001, only $11,488.93 remained to fund the contract until its termination on June 30, 2001. Thus, out of a total of $328,341.00 that the provider contracted with the District to receive under the five (5) contracts, only $11,488.93 remains to fund the one (1) remaining contract that was entered into while you served as District Administrator.
We also are advised that in addition to the one remaining contract discussed above, the provider serves Developmental Services clients under a Medicaid Waiver program. It also bills the Medicaid program of the Agency for Health Care Administration ("AHCA") for ITOS (Intensive Mental Health Services) for children, you advise. It contracts with the Lee County School District for the provision of additional children's services at approximately $3,000.00 per month. It has entered into a "small" contract with Lehigh Elementary School for the provision of non-Medicaid mental health services, and it has a entered into discussions with the Lake Trafford Elementary School relative to a services contract. Lastly, you advise that the provider bills DCF for the provision of supervised visitation services at approximately $2,500.00 per month.
Relevant to your inquiry are the following provisions of the Code of Ethics for Public Officers and Employees, which provide as follows:
POSTEMPLOYMENT RESTRICTIONS; STANDARDS OF CONDUCT FOR LEGISLATORS AND LEGISLATIVE EMPLOYEES.--
(a)1. It is the intent of the Legislature to implement by statute the provisions of s. 8(e), Art. II of the State Constitution relating to legislators, statewide elected officers, appointed state officers, and designated public employees.
2. As used in this paragraph:
a. 'Employee' means:
(I) Any person employed in the executive or legislative branch of government holding a position in the Senior Management Service as defined in s. 110.402 or any person holding a position in the Selected Exempt Service as defined in s. 110.602 or any person having authority over policy or procurement employed by the Department of the Lottery.
. . . . .
4. No agency employee shall personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.
5. Any person violating this paragraph shall be subject to the penalties provided in s. 112.317 and a civil penalty of an amount equal to the compensation which the person receives for the prohibited conduct.
6. This paragraph is not applicable to:
a. A person employed by the Legislature or other agency prior to July 1, 1989;
b. A person who was employed by the Legislature or other agency on July 1, 1989, whether or not the person was a defined employee on July 1, 1989;
c. A person who was a defined employee of the State University System or the Public Service Commission who held such employment on December 31, 1994;
d. A person who has reached normal retirement age as defined in s. 121.021(29), and who has retired under the provisions of chapter 121 by July 1, 1991; or
e. Any appointed state officer whose term of office began before January 1, 1995, unless reappointed to that office on or after January 1, 1995. [Section 112.313(9)(a), Florida Statutes.]
CONTRACTUAL SERVICES.--
(1) For the purposes of this section:
(a) 'Contractual services' shall be defined as set forth in chapter 287.
(b) 'Agency' means any state officer, department, board, commission, or council of the executive or judicial branch of state government and includes the Public Service Commission.
. . . . .
(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 or her responsibility while an employee. [Section 112.3185, Florida Statutes.]
For purposes of Section 112.3185(4), "contractual services" is defined as set forth in Section 287.012(7), Florida Statutes, to mean
the rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors, and such services may include, but are not limited to, evaluations; consultations; maintenance; accounting; security; management systems; management consulting; educational training programs; research and development studies or reports of findings of consultants engaged thereunder; and professional, technical, and social services. 'Contractual service' does not include any contract for the furnishing of labor or materials for the construction, renovation, repair, modification, or demolition of any facility, building, portion of building, utility, park, parking lot, or structure or other improvement to real property entered into pursuant to chapter 255 and rules adopted thereunder.
SECTION 112.313(9)(A) 4, FLORIDA STATUTES
Section 112.313(9)(a)4, Florida Statutes, prohibits agency "employees," as that term is defined at Section 112.313(9)(a)2, Florida Statutes, from representing another person or entity for compensation before the agency with which they were employed for a period of two years following vacation of their positions, unless their employment falls within the terms of an exemption contained in Section 112.313(9)(a)6, Florida Statutes. In CEO 94-34, we interpreted the 1994 amendments to Section 112.313(9)(a)6 to permit an employee who was not in a defined position on July 1, 1989, for example, a Selected Exempt Service ("SES") or Senior Management Service ("SMS") position, but who was otherwise employed by an agency on that date, to later accept a defined position with that agency after July 1, 1989 and continue to be exempt upon leaving the defined position. This is in contrast to the situation presented in 94-20[4], where we refused to conclude that any public employment prior to July 1, 1989 amounted to a lifetime exemption from the post‑employment restrictions of Section 112.313(9). Rather, we linked the exemption in Section 112.313(9)(a)6 to the employment that gave rise to the potential "revolving door" prohibition. See also CEO 00-1.
Inasmuch as you were employed by DHRS, the predecessor of DCF, prior to 1989 and served continuously thereafter, we are of the opinion that Sections 112.313(9)(a)6a and 6b apply to exempt you from the prohibition of Section 112.313(9)(a)(4). We conclude that you are not prohibited from representing the provider before DCF, including the District, for a period of two (2) years following the termination of your employment with DCF.
SECTIONS 112.3185(3) AND (4), FLORIDA STATUTES
Section 112.3185(3), Florida Statutes, also restricts the employment that you may seek after leaving employment with DCF by prohibiting you from becoming 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, in which we limited our interpretation of this list of activities to the procurement process. Similarly, Section 112.3185(4) prohibits you from becoming employed in a non-agency capacity in connection with any contract for contractual services which was within your responsibility as a DCF employee during the two-year period following your vacating your position.
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 contractual services.[5]
In CEO 88-32 we observed that Federal law provides a similar limitation on former officers and employees of the executive branch of the United States Government. Under 18 U.S.C. Section 207(a), for example, a former Government employee is prohibited from representing any other person before, or with the intent to influence by making any oral or written communication on behalf of any other person to, the United States in connection with any particular Government matter involving a specific party in which matter such employee participated personally and substantially as a Government employee. See 5 CFR Section 2637.201(a). For purposes of implementing this prohibition the Office of Government Ethics Regulations state:
To participate 'personally' means directly, and includes the participation of a subordinate when actually directed by the former Government employee in the matter. 'Substantially,' means that the employee's involvement must be of significance to the matter, or form a basis for a reasonable appearance of such significance. It requires more than official responsibility, knowledge, perfunctory involvement, or involvement on an administrative or peripheral issue. A finding of substantiality should be based not only on the effort devoted to a matter, but on the importance of the effort. While a series of peripheral involvements may be insubstantial, the single act of approving or participation in a critical step may be substantial. [5 C.F.R. Section 2637.201(d)] [E.S.]
Because we find that your involvement with the last remaining contract was direct, that is, you personally signed the contract, and because your participation in the process by signing the contract was highly significant, that is, the contract could not become executory unless and until it was approved by you or by an assistant district administrator on your behalf, we find that your participation in the procurement of the contract was both "personal" and "substantial." Therefore, if we determine that your employment with the provider is "in connection with" the one remaining contract, then we are of the opinion that Section 112.3185(3) would prohibit you from being employed by the provider in connection with that contract.
We also find that if your employment with the provider is "in connection with" the one remaining contract, then Section 112.3185(4) also would operate to prohibit your employment with the provider, because we are of the opinion that the subject contract was within your responsibility as District Administrator. As with CEO 88-32, our finding here is buttressed by our reference to the United State Code and the Code of Federal Regulations ("CFR").
The term "official responsibility," which is not defined in the Code of Ethics, is defined at 18 U.S.C. 202 as, "the direct administrative or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through subordinates, to approve or disapprove, or otherwise direct Government actions." The Office of Government Ethics Regulations, at 5 CFR Section 2637.202(b)(2), provides further assistance in determining whether a particular matter comes within an employee's "official responsibilities." It reads as follows:
Determining official responsibility. Ordinarily, the scope of an employee's 'official responsibility' is determined by those areas assigned by statute, regulation, Executive Order, job description or delegation of authority. All particular matters under consideration in an agency are under the 'official responsibility' of the agency head, and each is under that of any intermediate supervisor having responsibility for an employee who actually participates in the matter within the scope of his or her duties.
Thus, notwithstanding the fact that you may not have directly managed the subject contract by monitoring the provision of services, because it was subject to your approval and could not have become executory without your signature or without someone signing it on your behalf, and because you ultimately were responsible for the provision of all services provided by the District either directly or indirectly through contracts, we are of the opinion that the contract was within your "official responsibility" as District Administrator.
However, we do not find that your employment by the provider would be "in connection with" the one remaining contract between the provider and the District. Neither Section 112.3185(3) nor Section 112.3185(4) strictly prohibits a former State employee from going to work for an entity that has contracted with his or her agency. Instead, the statutes prohibit that employment only if it is "in connection with" the contract. Generally speaking, these provisions were adopted to prohibit State employees from being in a position to create a position with a private employer through influencing the award of a contract with that employer or mismanaging their responsibilities over that contract, and then leaving public employment to take that private position, or to prohibit the appearance of same.
Clearly, your employment would encompass a great deal more than the subject contract, which itself is winding down. For example, you would be responsible for managing and administering the provision of all of the provider's services in the region. This would include not only the provision of Adult and Family Substance Abuse Services under the subject contract, but the provision of services to the Lee County School District and to one or two elementary schools, the provision of intensive mental health services for children outside of any contract for the purchase of services that you were involved in as District Administrator, and for which Medicaid is billed,[6] the provision of services to DCF Developmental Services clients under a Medicaid Waiver program[7] outside of any contract for the purchase of services that you were involved with,[8] and the provision of supervised visitation services which is billed to DCF, and which is provided outside of any contract that you were involved in as District Administrator. Furthermore, your position would encompass expanding the services provided by the provider in the region, seeking additional contracts and sources of funding for the provider, and supervising 40 employees, one of whom presumably would be responsible for managing the one remaining contract between the District and the provider.
Accordingly, because your employment by the provider would not be "in connection with" any existing contract between the provider and the District, or "in connection with" any contract that you were involved in the procurement or development of as District Administrator, we are of the opinion that neither Section 112.3185(3) nor Section 112.3185(4) Florida Statutes, prohibits you from becoming employed as Regional Director of the provider.
ORDERED by the State of Florida Commission on Ethics meeting in public session on March 15, 2001 and RENDERED this 20th day of March, 2001.
__________________________
Howard Marks
Chair
[1]The Legislature at Section 20.19(5)(a) 10 and 11, Florida Statutes, created Subdistrict A of DCF District 8. It consists of Sarasota and DeSoto Counties. Charlotte, Lee, Glades, Hendry and Collier Counties make up Subdistrict B.
[2]Comprising the Southwest region will be Charlotte, Lee, Collier, Hendry, and Glades Counties, you write.
[3]You advise that the provider also serves two (2) DCF districts on Florida's east coast and one in Southwest Florida.
[4]CEO 94-20 was appealed to the First District Court of Appeal, which affirmed the opinion by a "Per Curiam Affirmed" decision, as Anderson v. Commission on Ethics, 651 So. 2d 1198 (Fla. 1st DCA 1995).
[5]The subject of CEO 82-67 was a former District Grants Specialist for DHRS who was employed as a fiscal manager by a corporation which was under contract with the Department. Because the former employee's private employment was not in connection with any contract in which he "substantially participated" while employed by the Department, and because the former employee's private employment was not "in connection with" any contract for contractual services which was within his responsibility while a State employee, we found that no prohibited conflict of interest existed.
[6]You advise that one of the criteria employed by the AHCA to certify a provider for payment of Medicaid funds is that the provider has a contract with DCF for the provision of mental health services. Although you write that the provider has used the Adult and Family Substance Abuse Services, contract which you signed and which it refers to as a "mental health" contract as the basis for qualification for the payment of Medicaid funds, you advise that you were not involved with any such existing mental health services contract between the provider and DCF.
[7]According to Rule 59G-8.200, F.A.C. [Home and Community-Based Waivers], Florida obtained waivers of federal Medicaid requirements to enable the provision of specified home and community-based (HCB) services, such as services that can be provided by the provider, to persons at risk of institutionalization. Through the administration of several different federal waivers, Medicaid reimburses enrolled providers for services that eligible recipients may need to avoid institutionalization. Under the Developmental Services Medicaid Waiver program, participants must be (1) clients of the DCF Developmental Services Program; (2) eligible for admission to an intermediate care facility for the mentally retarded-developmentally disabled (ICF/MR-DD);and (3) have elected to receive services in the community rather than in an ICF/MR. In addition, the HCB waiver services must be designed to allow the recipients to remain at home or in a home-like setting.
[8]Although you advise that you signed a Developmental Services Medicaid Waiver agreement in February 2000, that allowed Independent Support Coordinators to choose the provider for the provision of services to DCF Developmental Services clients (See CEO 93-20 for a discussion of how the Medicaid Waiver program operates relative to Independent Support Coordinators), it did not commit the District to either the expenditure of any funds or to the purchase of services from the provider.