DCF FORMER ASSISTANT SECRETARY EMPLOYED BY DCF CONTRACTOR
To: Name withheld at person's request (Ocoee)
A former employee of the Department of Children and Family Services would not be prohibited under Section 112.3185(3) or (4), Florida Statutes, from accepting employment as chief executive officer of a company in connection with a contract for contractual services, through application of Section 112.316, Florida Statutes, to the particular facts presented. CEO 12-04, CEO 11-24, CEO 01-6, and CEO 09-5 are referenced.1
Would Section 112.3185, Florida Statutes, prohibit your holding employment or a contractual relationship, after you leave public employment with the Department of Children and Family Services, with a company in connection with a contract for which you were not personally and substantially involved in procurement but which is among many legislatively-mandated Community-Based Care contracts overseen by your Departmental subordinates?
Your question is answered in the negative, under the circumstances presented.
By your letter of inquiry and additional information provided, you relate that from July 1992 to the present you have been employed by the Department of Children and Family Services (DCF). From June 2007 to September 2011, you were Central Region Managing Director and from September 2011 to present, you have served as Assistant Secretary for Operations, statewide.
You further state that you are a candidate for the position of Chief Executive Officer (CEO) of Kids Central, Inc. (Kids Central), which is a company that contracts with DCF as a Community-Based Care (CBC) lead agency to provide contractual services for foster care and related functions for the five counties in the Fifth Judicial Circuit (formerly DCF District 13). The position with Kids Central would include responsibilities in connection with the company's contract for contractual services with DCF which expires June 30, 2016.
You relate that the Kids Central contract is one of many legislatively-mandated CBC contracts in Florida. You explain that the original contract between DCF and Kids Central took effect March 1, 2004, was renewed in 2007, and expired in 2010, requiring a new competitive solicitation. You state that you did not participate in the solicitation, procurement, approval or signing of the present Kids Central contract, which took effect July 1, 2011, while you were Central Region Managing Director and which was approximately ten weeks before you became Assistant Secretary for Operations.
You explain that as Central Region Managing Director, you were responsible for subordinates who monitored quality and operations related to all DCF contracts with the five-county Central Region, including program areas known as ACCESS Florida Food, Medical Assistance and Cash; Substance Abuse and Mental Health (SAMH); Adult Protective Services; Child Protective Investigations; Child Care Licensing; and CBC contracts, including the DCF contract with Kids Central. Your duties as one of six regional managing directors included interacting with the DCF office in Tallahassee as well as with persons in the communities served. Because CBC contractors, including Kids Central, obtain and supervise subcontracting service providers, you did not interact with providers.
You describe your present DCF responsibilities as follows:
- Supervision of statewide DCF operations through oversight of the Florida Abuse Hotline and Refugee services and program areas of ACCESS, Child Protective Investigations, Adult Protective Services, SAMH, and Child Care Licensing;
- Oversight of six regional managing directors whose subordinates oversee contracts, as stated above, including CBC contracts such as Kids Central; and
- Supervision of agency operations for 6,000+ employees and programs in all 67 Florida counties under an annual agency budget of approximately $2.8 billion.
As to your present role regarding the relevant contract and other CBC contracts, you state that, at the state level, the primary responsibilities for CBC contracts are shared by the Assistant Secretary for Administration, the statewide Family and Community Services Director, and the Office of the General Counsel. You relate that, as with other CBC contracts, the relevant contract is monitored within DCF by a Contract Oversight Unit, which reports to the DCF Contracted Client Services Director, and a Fiscal Monitor Unit, which reports to the DCF Chief Financial Officer, and that both units ultimately report to the Assistant Secretary for Administration. You explain that the CBC contractors also conduct their own internal reviews through a Memorandum of Understanding with the DCF Family Safety Program Office. You state that you are not involved in routine contract monitoring or corrective actions, which are handled as stated above, but that as Assistant Secretary for Operations you would expect to be informed of serious issues related to any CBC contractor's performance.
You write that, as chief executive officer of Kids Central, you would be responsible for managing and administering the company's services in connection with its DCF contract, and that such services primarily relate to foster care and related services for Circuit 5. You state that your primary responsibilities would be:
- Developing and sustaining a local system of care for coordination, integration, and management of all child protective services in Circuit 5;
- Ensuring continuity of care for all children referred to the local system of care;
- Providing all foster care and related services directly or through contracts with a network of subcontractors;
- Ensuring compliance with state and federal law and reporting performance outcomes;
- Assuming and managing financial risk based on a capped budget appropriated by the Florida legislature;
- Administering a workforce of approximately 100 employees and overseeing an annual budget of approximately $46 million; and
- Overseeing expansion of the company to bring in additional fund sources and contracts.
Section 112.3185(3), Florida Statutes, 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.
Section 112.3185(3) prohibits you from having any employment with any business entity in connection with any contract in which you participated personally and substantially through decision, approval, disapproval, recommendation, rendering of advice, or investigation.
Because you represent that you had no involvement, either as Central Region Managing Director or as Assistant Secretary for Operations, in the procurement, development, award, or approval of the existing contract between DCF and Kids Central, your prospective employment with the contractor would not be restricted by this statute. In CEO 01-6, we opined that a former DCF district administrator would not be subject to Section 112.3185(3) where she had not participated in the procurement of a DCF contract with her new employer, a social services provider.
Section 112.3185(4),1 Florida Statutes, states:
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.
Section 112.3185(4), Florida Statutes, prohibits you from being employed with any business entity within two years of your departure from DCF in connection with any contract for contractual services which was within your responsibility while you were an employee of the Department. The contract between DCF and Kids Central apparently is a contract for contractual services, and you do not dispute that it is such a contract, under the definition set forth above. Further, you acknowledge that your responsibilities as CEO of Kids Central would be "in connection with" the present DCF contract. Therefore, the remaining issue is whether the relevant contract has been "within your responsibility," as an employee of DCF since July 1, 2011, the date that the present Kids Central contract came into effect.
During approximately the first ten weeks of the existence of the relevant contract, from July 1 to September 15, 2011, you served as DCF Central Region Managing Director. In that position you were responsible for overseeing DCF employees who monitored operations of all contracts, including the Kids Central contract, for the Central Region. Currently, you oversee statewide DCF operations, including ultimately those operations related to CBC contracts, but state that you do not have knowledge of day-to-day operations of the contracts, including the contract with Kids Central.
We find that the relevant contract is within your responsibility. The facts you have presented reflect that, as Assistant Secretary for Operations, and formerly as Central Region Managing Director, your positions at DCF in the past year have been within the ultimate chain of supervision above DCF contract monitors and that, among other DCF duties, you are informed of serious issues that may occur related to CBC contractors, including Kids Central. This finding is in accord with our finding in CEO 01-6 construing "within responsibility" to include a situation in which an agency administrator is "ultimately . . . responsible for the provision of all services provided by [the agency] either directly or indirectly through contracts." Thus, Section 112.3185(4), if applied in isolation, would restrict your post-DCF employment regarding the provider.
However, the particular circumstances of your inquiry include, as set forth herein and provided by you, the following facts: The relevant contract was negotiated, entered into, and signed by persons other than you. Your oversight of supervisors of the contract as Central Region Managing Director was limited to a ten-week period, and nearly half of the two-year limitation period (which would end in September 2013) related to that position under Section 112.3185(4) has already lapsed. You represent that you have not, in your present position during the past year, routinely reviewed corrective action plans or related information regarding the contract or matters related to the company. You state that the contract is primarily monitored within DCF by a Contract Oversight Unit, which reports to the DCF Contracted Client Services Director, and a Fiscal Monitor Unit, which reports to DCF Chief Financial Officer, and that both units ultimately report to the Assistant Secretary for Administration. These factors lend themselves to application of Section 112.316, Florida Statutes, which provides:
CONSTRUCTION.It is not the intent of this part, nor shall it be construed, to prevent any officer or employee of a state agency or county, city, or other political subdivision of the state or any legislator or legislative employee from accepting other employment or following any pursuit which does not interfere with the full and faithful discharge by such officer, employee, legislator, or legislative employee of his or her duties to the state or the county, city, or other political subdivision of the state involved.
In light of the totality of the facts you provide, we believe it is appropriate to apply Section 112.316 to negate the restriction that would arise in your situation via the literal language of Section 112.3185(4).
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 Kids Central and DCF.2
Your question is answered accordingly.
ORDERED by the State of Florida Commission on Ethics meeting in public session on July 27, 2012 and RENDERED this 1st day of August, 2012.
Susan Horovitz Maurer, Chair
For purposes of Section 112.3185(4), "contractual service" is defined in Section 287.012(8), 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 on the findings of consultants engaged thereunder; and professional, technical, and social services."
You have indicated you understand that if you move to new employment Section 112.313(9)(a)4, Florida Statutes, would prohibit you from personally "representing" your employer for compensation before DCF for two years following the vacation of your position. "Representing" is defined in Section 112.312(22) as "actual physical attendance on behalf of a client in an agency proceeding, the writing of letters or filing of documents on behalf of a client, and personal communications made with the officers or employees of any agency on behalf of a client." Note that this definition is very broad, including almost all contact on behalf of your prospective employer with DCF or its personnel for the two-year period, unless the contact is limited to rote, mechanical contact necessary to deliver or perform a contract, and is not made in an effort to get DCF or its personnel to do or not do something. See CEO 12-04, CEO 11-24 (note 10) and CEO 09-5. Also note that Section 112.313(8), which prohibits the use of "inside" information gained by virtue of public position, remains applicable even after you leave public employment.