CEO 94-40 -- October 13, 1994
CONFLICT OF INTEREST
DEPARTMENT OF MANAGEMENT SERVICES TELECOMMUNICATIONS
SYSTEMS CONSULTANT OFFERED POSITION WITH COMPANY
PROVIDING TELEPHONE SYSTEMS TO STATE AGENCIES
UNDER ITS CONTRACT WITH THE DEPARTMENT
To: (Name withheld at the person's request.)
The Code of Ethics would not prohibit a Telecommunications Systems Consultant with the Department of Management Services from leaving public employment for employment with a company under contract with the Department to provide electronic key telephone systems to State agencies. Under the circumstances, Section 112.3185(3), Florida Statutes, does not apply, because the employee did not participate personally and substantially in the procurement of the Department's contract with the company. Similarly, Section 112.3185(4) does not apply because the Department's contract with the company is not one for "contractual services," as that term is defined in Section 287.012, Florida Statutes.
Would the Code of Ethics for Public Officers and Employees be violated were you, a Telecommunications Systems Consultant with the Department of Management Services, to leave public employment for employment with a company that is under contract with the Department to provide electronic key telephone systems to State agencies?
Your question is answered in the negative.
In your letter of inquiry, letter responding to staff's questions, and telephone conversations with staff, you advise that you are a Career Service employee considering taking a position as an Area Tele-Link Representative with a world-wide company involved in providing telephone and communications systems. However, you are concerned about whether a prohibited conflict of interest would be created were you to accept this position, considering your present employment with the Department of Management Services ("Department") as a Telecommunications Systems Consultant.
You advise that the original electronic key telephone systems contract which the company entered into with the Department was due to expire in 1992 but has been renewed for the last two years. Its expiration date is now March 1995, when it will be let out for bids again. The contract is for the provision of telephone systems to State agencies and other governmental organizations, you write. You advise that you had no involvement in the selection of the company's original bid nor in determining the company's ability to meet the State's needs under the contract. You also advise that the State has entered into two other telecommunications contracts with two other companies.
As an Area Tele-Link Representative, you advise, you would be expected to go to any location that the company wishes to send you in order to assist current company customers with any additions, moves, and changes to their phone systems or with whatever problems or requests they may have. However, you would not be involved in selling to prospective clients.
You also advise that most of the company's customer base in this area consists of State agencies. Therefore, because the company is under contract with the Department, you would not be able to approach State agencies and attempt to "sell" the company's systems to them. You advise that currently the agencies usually will accept whatever recommendations you, as Telecommunications Systems Consultant with the Department, have made, whether it is electronic key, feature phone, or PABX. Occasionally you will ask the company, as you do with the other two companies, to come in and explain the features of their system to an agency.
You advise that as a Telecommunications Systems Consultant for the Department, you are responsible for assisting agencies buying from the company's and the other companies' State contracts. Before buying a new phone system or even an upgrade to its existing system, you advise, an agency usually will meet with you in order to inform you about its desires and requirements so that you can make a decision about the kind of a phone system to install. You advise that part of your decision entails consideration of the company's systems' flexibility to add line cards and station cards. Anyone who might be hired by the Department to fill your position also would be required to interact with the company in a like manner, you advise. Additionally, you have confirmed that your current job function requires you to monitor the company's work. Among your duties, as set forth in your written "Performance Appraisal Elements and Standards, are the following:
I. Provide assistance to state agencies and political subdivisions in the identification and documentation of telecommunications.
1) Act as the single point of contact and provide total consultation service to agency prior to procurement of telephone system from state contract. . . . .
4) Perform cost trade off studies and determine viable alternatives for consideration. . . . .
7) Present recommendations to agencies. . . . .
8) Utilize field experience to provide inputs to state telecommunications contracts with consideration given to: size of systems needed; problems with systems or equipment operational features needed; features that should be eliminated or modified.
II. Serve as the project manager in the installation and checkout of new telecommunications systems or major modification to existing systems. . . . .
2) Monitor vendor actions to ensure that they are not acting as the Consultant for the project. . . . .
3) Support and assist the Section's inspection consultant to ensure that equipment is installed per specifications and in conformance to good engineering policies and practices.
The applicable provisions of the Code of Ethics for Public Officers and Employees provide as follows:
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.]
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.]
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 on the 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.
Given this definition, we are of the opinion that the Department's electronic key telephone contract is not a contract for contractual services. We find, therefore, that Section 112.3185(4) does not apply in this situation.
In addition, Section 112.3185(3), Florida Statutes, restricts the employment which you may seek after leaving the Department by prohibiting your employment with 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, CEO 91-67, and CEO 93-20. In CEO 83-8, we opined that Section 112.3185(3) is directed to those persons who participated in the procurement or development of a contract through "decision, approval, disapproval, recommendation, rendering of advice or investigation." We limited the interpretation of this list of activities to the procurement process because we observed that the same language is used in Section 112.3185(2), which we opined clearly pertains only to actions of an agency employee in the procurement of a contract. We found that our interpretation was buttressed further by the Senate Staff Analysis and Economic Impact Statement of Senate Bill 387 (April 19, 1992), which states:
Retired or terminated agency employees would be prohibited from contracting with an agency in connection with any contracts that the former employee participated in developing.
Consequently, because you have indicated that you have not been involved in writing, evaluating, or awarding any State contract, or in the selection of the company or determining its ability to meet the State's needs, we are of the opinion that, under our prior interpretation of Section 112.3185(3), you are not prohibited from becoming employed as a Tele-Link Representative with the company.
Accordingly, we find that the Code of Ethics for Public Officers and Employees would not prohibit you, a Telecommunications Systems Consultant with the Department of Management Services, from becoming employed as a Tele-Link Representative with a company under contract with the Department to provide electronic key telephone systems to State agencies.