DCF FORMER EMPLOYEE PRIVATELY EMPLOYED IN CONNECTION WITH DCF CONTRACT
To: Mr. Stephen Conrad (Jacksonville)
Through the application of Section 112.316, Florida Statutes, to the particular facts of this inquiry, a former employee of the Department of Children and Family Services is not subject to the two-year post-public-employment restriction of Section 112.3185(4), Florida Statutes. CEO 05-19, CEO 01-6, and CEO 95-19 are referenced.
Would Section 112.3185(4), Florida Statutes, prohibit your holding employment or a contractual relationship [after you leave public employment with the Department of Children and Family Services (DCF)] with a company in connection with a contract regarding which you had the limited DCF responsibility described below?
Under the particular circumstances of your inquiry, this question is answered in the negative.
By your letter of inquiry and additional information provided to our staff, we are advised that you are employed by the Department of Children and Family Services (commonly known as the Department of Children and Families or DCF), District 4, as the District Manager for Administrative Services, and that one of the sections you supervise includes contract managers for community based care organizations contracting with DCF. In addition, you advise that because your DCF position is being eliminated with a reorganization of DCF effective July 1, 2007, you have applied for a private position with a community based care provider as its chief operations officer, with the position including your working for the provider in connection with a contract for contractual services between DCF and the provider which expires in February 2009.
Further, you advise that the contract was signed in 2004, that you began your employment with DCF in 2005, and thus that you did not participate personally and substantially through decision, approval, disapproval, recommendation, rendering advice, or investigation regarding the contract. However, regarding the particular contract and similar contracts, you describe your DCF role to include:
Section 112.3185(4), Florida Statutes, provides:
An agency employee may not, within 2 years 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 for contractual services which was within his or her responsibility while an employee. If the agency employee's position is eliminated and his or her duties are performed by the business entity, this subsection may be waived by the agency head through prior written approval for a particular employee if the agency head determines that the best interests of the state will be served thereby.
Inasmuch as you have represented that your work after you leave DCF will be in connection with a DCF contract for contractual services, we must determine whether the contract was "within your responsibility" while you were a DCF employee.
We find that the contract was within your responsibility. The relevant scenario that crystallizes from your inquiry is that you (in your DCF capacity) were in the chain of supervision above contract monitors/managers who managed the particular contract with the provider, and that, among other DCF duties of yours concerning the monitors/managers, you saw or reviewed their corrective action plans or related information regarding the contract and the provider. This finding is in accord with our finding in CEO 01-6 construing "within responsibility" to include situations in which one is the supervisor of one who actually participates regarding a matter. Thus, Section 112.3185(4), if applied in isolation, would restrict your post-DCF employment regarding the provider.
However, under the particular circumstances of your inquiry, which include the contract in question having been designed and entered into by persons other than you prior to your employment with DCF, your short tenure as a DCF employee, the responsibilities of the District Administrator and the contract oversight unit, and your not having been the contract monitor/manager of the contract, we believe that it is appropriate to apply Section 112.316, Florida Statutes, thereby negating the restriction that would arise via the literal language of Section 112.3185(4). See CEO 95-19 (former AHCA employee employed by prepaid Medicaid health plan provider contracting with AHCA) in which we observed that "Section 112.3185(4) was designed to prevent State employees from using their public positions to conceive of a need for services, develop a contract to obtain those services, and then to 'switch sides' and go to work for the entity that was awarded the contract that they conceived and developed while public employees."
Accordingly, under the specific circumstances of your inquiry, we find that you are not restricted by Section 112.3185, Florida Statutes, from working after you leave DCF employment in connection with a contract between your private employer or a related entity and DCF.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 8, 2007 and RENDERED this 13th day of June, 2007.
Norman M. Ostrau, Chairman
For prior opinions of the Commission on Ethics, go to www.ethics.state.fl.us
We find that Section 112.3185(3), Florida Statutes, would not be violated by your working for the provider in connection with the contract because you represent that you did not have a procurement role as described in the statute and because you represent that the contract was entered into prior to your DCF employment. Section 112.3185(3) provides:
An agency employee may not, 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. When the agency employee's position is eliminated and his or her duties are performed by the business entity, this subsection does not prohibit him or her from employment or contractual relationship with the business entity if the employee's participation in the contract was limited to recommendation, rendering of advice, or investigation and if the agency head determines that the best interests of the state will be served thereby and provides prior written approval for the particular employee.