CEO 16-06 — June 8, 2016
POST EMPLOYMENT RESTRICTIONS
FORMER DCF CONTRACT MANAGER HOLDING
EMPLOYMENT WITH ENTITY CONTRACTING WITH DCF
To: Name withheld at person's request (Seminole County)
Section 112.3185(4), Florida Statutes, would prohibit, for two years, a former Department of Children and Families employee from holding private employment with a community based care organization funded by the Department, because the employment would be in connection with a contract for contractual services that was within the employee's responsibility at DCF.1 Referenced are CEO 15-15, CEO 14-22, CEO 12-20, CEO 11-24, CEO 07-16, CEO 07-11, CEO 06-3, and CEO 78-18.
Would Section 112.3185(4), Florida Statutes, prohibit you from holding employment with a contractor, after you retire from the Department of Children and Families, when the position of employment is funded by a contract for contractual services you managed for the Department?
Your question is answered in the affirmative.
You state that you served as a contract manager for the Florida Department of Children and Families ("DCF"), in a Career Service position, until your retirement on May 31, 2016. In this position, you managed a contract that funds child welfare services in Seminole County. Contracts for community-based care, including the contract you managed, are awarded through a competitive bidding process, performance measures are established by DCF, and funding is based on a formula established by the Legislature.2 Community Based Care of Central Florida ("CBCCF"), a private entity, disburses funds to various subcontractors who provide foster care, adoption, and independent living services to children in need. As contract manager, you monitored CBCCF to ensure compliance with relevant statutes, policies, and contract terms.
You would like to accept a position as Adoption Manager for CBCCF. 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.
This provision prohibits you from being employed with any business entity,3 for two years after your departure from DCF, when such employment is in connection with any contract for contractual services which fell within your responsibility while you were a DCF employee. The contract you managed at DCF funds child welfare services provided by CBCCF, including the Adoption Manager position you would like to accept. The DCF-CBCCF contract is a contract for "contractual services," as defined in Section 287.012(8), Florida Statutes, which includes social services provided by a contractor.4 The contract falls "within your responsibility" because you were the contract manager assigned to manage this agreement. Your duties included reviewing contract performance measures and deliverables, organizing and participating in System of Care meetings with regional managers from both DCF and CBCCF, processing invoices, and serving as an intermediary between the regional office and DCF Headquarters in Tallahassee.
The question is whether the position you hope to take at CBCCF is "in connection with" the DCF-CBCCF contract, thereby triggering the restrictions of Section 112.3185(4). At CBCCF, the Adoption Manager oversees subcontractors who provide services, including foster care, protective services, adoption, and independent living. You state that your primary responsibilities would include training and technical assistance for subcontractors, arranging post-adoption services, assisting with quality assurance reviews, and implementing the System of Care document. You state that you would not be involved in contract management at CBCCF. However, you would oversee subcontractors that are funded by the contract you managed at DCF, and these subcontractors are required to meet performance standards set by DCF. As in CEO 15-15 and CEO 06-03, which applied the two-year restriction found in Section 112.3185(4) to former employees whose work involved monitoring or managing private contractors, your proposed position with CBCCF would unavoidably be "in connection with" the DCF-CBCCF contract you formerly managed. Thus, Section 112.3185(4) restricts you from accepting the Adoption Manager position for two years from the date of your retirement.5
The second portion of Section 112.3185(4) describes a waiver that may be granted by an agency head, to a particular employee, when that employee's position is being eliminated or his or her duties are to be performed via private contract, as in CEO 14-22 and CEO 07-16. As there is no indication that DCF is contracting out your position, this provision does not apply to your situation.6
You asked that Section 112.316, Florida Statutes, be applied to negate the prohibition of Section 112.3185(4). This section 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 CEO 12-20, upon which you rely, we applied this provision to find that a former DCF Assistant Secretary could accept a position as chief executive officer for a company that contracted with DCF, even though he had been responsible for subordinates who managed community-based care contracts with numerous entities. The facts of that opinion were substantially different from those you present, including the fact that the administrator had no personal day-to-day involvement in the contract management, and the fact that his oversight as an administrator was limited to a ten-week period that had ended almost one year prior to his departure from DCF. In contrast, according to your materials, your duties included "managing the contract, reviewing performance measures and deliverables, organizing and participating in System of Care meetings with DCF Regional Management, CBCCF management team, community partners," as well as "process[ing] monthly invoices" and "initiat[ing] all amendments/contracts." We cannot apply Section 112.316 in a circumstance which so squarely meets the parameters of the prohibition, as to do so would eviscerate the prohibition itself.
Accordingly, Section 112.3185(4) would prohibit, for two years, your holding the employment described.
ORDERED by the State of Florida Commission on Ethics meeting in public session on June 3, 2016, and RENDERED this 8th day of June, 2016.
Stanley M. Weston, Chair
Prior opinions of the Commission on Ethics may be obtained from its website (www.ethics.state.fl.us).
You state that you did not serve as the procurement manager, therefore you are not restricted by Section 112.3185(3), Florida Statutes. This section provides, in relevant part:
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.
A nonprofit group can be a "business entity." See CEO 78-18 and CEO 07-11, Note 12.
For the 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.
If the current contract between DCF and CBCCF expires and a new contract is issued, Section 112.3185(4) will not prohibit you from accepting employment related to the newly-issued contract, so long as you have not had responsibility for the new contract in your DCF capacity. Such work would not be in connection with the "old" DCF-CBCCF contract, which was within your responsibilities, but rather with the separate and newly awarded contract. See CEO 11-24.
In your request, you mention a "grandfather clause" found in Section 112.313(9)(a)6. This can apply to employees in the Senior Management Service or in the Select Exempt Service, but only in reference to the prohibition of Section 112.313(9)(a)4, Florida Statutes, not to that of Section 112.3185(4).