POSTEMPLOYMENT RESTRICTIONS

FORMER DMS EMPLOYEE WORKING
FOR BUSINESS ENTITY CONTRACTING WITH DMS

To: Name withheld at person's request (Tallahassee)

SUMMARY:

Under the circumstances presented, a former chief of staff in the Florida Department of Management Services is not restricted under Sections 112.313(9), 112.3185(3), or 112.3185(4), Florida Statutes, in his present employment with a software company which is a party to DMS contracts. CEO 12-4, CEO 11-24, CEO 09-5, and CEO 03-10 are referenced.¹

QUESTION:

Is a former Department of Management Services chief of staff restricted under the Code of Ethics in his present employment with a software company which is a party to DMS contracts?

Under the circumstances presented, your question is answered in the negative.

In your letter of inquiry, you state that you write on behalf of a former Department of Management Services (DMS) employee who was employed by the agency in several positions classified as Senior Management Service (SMS). You state that he was employed as director of the office of communications from 2012 to 2014, acting chief of staff and director of the office of communications during 2014, and chief of staff from January 5, 2015, until his departure from DMS on May 13, 2016. You state that these positions were within the Office of the Secretary of DMS and that the former employee never held a management position (such as division director or bureau chief) in either of the DMS workforce operations or business operations branches. You state that key DMS discretionary roles as to public contracts—e.g., contract solicitations, contract evaluations/awards, and contract performance oversight—were principally performed by personnel in these two branches of DMS and that the Deputy Secretaries overseeing the two branches reported directly to the Secretary and not to the former employee. You ask whether the Code of Ethics would prohibit or restrict his present employment with a company if such work includes seeking contracts for the company with agencies other than DMS, where such agencies are parties to DMS master contracts that exist in connection with separate, independently-procured contracts between such agencies and the company. The contracts concern the provision by DMS of centralized administrative support to State agencies and their employees, including planning and budget, human resources, purchasing, finance and accounting services, fiscal integrity oversight, and policies and procedures development.² You explain that the State agency contracts the former employee would seek to procure on behalf of the company would be "term" (not "master") contracts under which the company would be selected and paid by the procuring agency (not by DMS).

Further, you state that although the former employee made a suggestion for DMS decision-makers regarding the possible withdrawal of a 2015 contract procurement, which DMS later withdrew, he had no responsibility or discretion as to solicitation, evaluation, award, or oversight of DMS contracts. Since his departure from DMS in 2016, the former employee has been employed by a company which develops software and provides software solutions for DMS and other Florida agencies, and which is a signatory to two DMS contracts awarded while the former employee was employed at DMS and also is a signatory to two DMS contracts which were awarded after he left his DMS position.

The provisions of the Code of Ethics possibly implicated in the former employee's scenario are Sections 112.313(9)(a)4, 112.3185(3), and 112.3185(4), Florida Statutes,³ which can apply to former employees of State agencies. Section 112.313(9)(a)4, Florida Statutes, prohibits a former agency employee who was classified as SMS or Selected Exempt Service (SES), or certain other statuses, from personally "representing" another person or entity for compensation before the former employee's former agency for two years following the vacation of his or her public position. The term "represent" is defined in Section 112.312(22), Florida Statutes, to mean:

 . . . .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.

Since you indicate that the former employee's most recent position at DMS was classified as SMS, this restriction would apply to him. However, you state that he does not intend to represent the company or any other person or entity before DMS, for compensation or otherwise, during the remainder of the two-year period that began May 13, 2016, the date of his departure from DMS. As long as he avoids all representation contact with DMS and its personnel, there will be no violation of Section 112.313(9)(a)4.

You also inquire concerning the implications of his seeking, on behalf of the company, contracts with agencies other than DMS, which agencies are parties to master contracts with DMS existing in connection with the separate agency contracts he would be seeking. As long as he does not represent⁴ the company before DMS or its personnel during the two-year period after his departure from DMS, he would not be in violation of Section 112.313(9)(a)4, regardless of existing DMS contracts.⁵

Further, Section 112.3185(3) states 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 . . . .

This statute prohibits a former State agency employee from going to work for a private business (prime contractor, subcontractor, or other) in connection with a contract where the agency employee was personally and substantially involved in the procurement of the contract. Although the former employee (as acting chief of staff and as chief of staff) made general suggestions and at least one specific suggestion as to possible withdrawal of a DMS procurement, you state that he had no responsibilities or discretion as to DMS procurement of any contracts, including DMS' present contracts with the company that is now his employer. Therefore, his employment is not restricted under Section 112.3185(3), Florida Statutes, since, under the facts you have presented, he did not participate personally and substantially in the procurement of master contracts or other contracts during his employment at DMS.

Also relevant is Section 112.3185(4), Florida Statutes, which states in pertinent part:

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 . . . .

This provision prohibits a former State agency employee, for two years after the date he left his agency position, from going to work for any business entity in connection with a contract for contractual services which was within his responsibility or that of his agency (DMS) subordinates while he was with the agency. You state that, during his employment at DMS, the former employee did not supervise (or supervise those who supervised) the performance of any DMS contracts for contractual services and had no discretionary responsibility as to contract performance. Therefore, he is not restricted under Section 112.3185(4) as to employment in connection with a DMS contract for contractual services.

Thus, we conclude that the former DMS employee's present employment is not restricted under Sections 112.3185(3) or 112.3185(4), Florida Statutes, and, as long as he avoids representing his employer (the company) or other persons or entities before DMS or its personnel for the two-year period after his departure from DMS, Section 112.313(9)(a)4, Florida Statutes, will not be implicated.⁶

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on July 28, 2017, and RENDERED this 2nd day of August, 2017.

____________________________________

Michelle Anchors, Chair

^[1]Opinions of the Commission on Ethics may be obtained from www.ethics.state.fl.us.

^[2]See http://www.dms.myflorida.com/agency_administration

^[3]See CEO 11-24 for a discussion of the restrictions under Sections 112.3185(3) and 112.3185(4), Florida Statutes, which operate independent of the restriction in Section 112.313(9)(a)4, Florida Statutes. Also discussed in CEO 11-24 is Section 112.3185(5), Florida Statutes, which would apply to the former DMS employee if he were to be paid for employment or contractual services directly by DMS during the first year after his departure from DMS and which states that such payment shall not exceed his annual salary received on the date of cessation of his previous responsibilities.

^[4]Please note that "representation" is very broadly defined, including almost all contact on behalf of the company with DMS 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 an attempt to request or persuade DMS or its personnel to do or not do something. CEO 12-4 and CEO 09-5.

^[5]In CEO 03-10, we stated that Section 112.313(9)(a)4, Florida Statutes, would not prohibit the former Director of Legislative Affairs for DMS from representing clients for compensation before the so-called "dotted line" agencies administratively assigned to DMS—which, at the time, included the Correctional Privatization Commission, the Florida Commission on Human Relations, the Public Employees Relations Commission, the Division of Administrative Hearings, and the State Technology Office—within two years of vacating his position with DMS. Similarly, we now find that the former DMS employee would not be prohibited from representing his present employer before the present "dotted-line" agencies administratively assigned to DMS, or before agencies unconnected to DMS.

^[6]As you note in your letter of inquiry, the former employee also must comply with Section 112.313(8), Florida Statutes, which requires him to refrain from the use of information he gained by reason of his DMS employment and which is not available to the general public for his gain or benefit or the gain or benefit of any other person or business entity.