POSTEMPLOYMENT RESTRICTIONS

DEPARTMENT OF CORRECTIONS EMPLOYEE ACCEPTING
POST-PUBLIC-EMPLOYMENT WITH A VENDOR OF
THE DEPARTMENT

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

SUMMARY:

Under the circumstances presented, Sections 112.3185(3) and 112.3185(4), Florida Statutes, will not restrict an Assistant Warden with the Department of Corrections from leaving State employment and accepting a position with a vendor that is providing comprehensive healthcare for the Department. However, for two years after leaving State employment, Section 112.313(9)(a)4., Florida Statutes, will restrict him from representing the vendor for compensation before any agency officer or employee within his Departmental region. Referenced are CEO 19-5, CEO 18-18, CEO 18-9, CEO 12-4, CEO 11-24, CEO 09-6, CEO 09-5, CEO 07-16, CEO 07-10, CEO 07-6, CEO 06-3, CEO 05-16, CEO 05-4, CEO 03-8, CEO 00-6, CEO 93-2, CEO 90-27, CEO 89-20, CEO 88-79, and CEO 83-8.

QUESTION:

Would an Assistant Warden with the Department of Corrections be restricted under any post-public-employment provisions in the Code of Ethics from accepting an employment offer from a vendor providing comprehensive healthcare for the Department?

Under the circumstances presented, this question is answered in the affirmative.

In your letter of inquiry and additional information supplied to our staff, you indicate you are one of the Assistant Wardens for the Everglades Correctional Institution with the Florida Department of Corrections. You state your position as Assistant Warden is classified as Selected Exempt Service (SES) and that you have served in that capacity since March 2017. You relate your role as Assistant Warden largely pertains to overseeing the security operation of the Everglades Correctional Institution, and you have provided a job description for your position that indicates you also assist in supervising "the day-today functions of the [I]nstitution and monitor[ing] daily operations."

Your inquiry stems from a post-public-employment job offer that you have received from a Department vendor (hereinafter, "the vendor"). The vendor is currently contracting with the Department of Corrections to provide comprehensive healthcare for the inmate population at all the Department's correctional institutions. It has offered you the position of Health Services Administrator at the Dade Correctional Institution, which you indicate would require you to be physically placed at the Dade facility and would entail regularly interacting with Department staff. You have provided the vendor's job description of the Health Services Administrator position, which indicates this position is responsible for—among other duties—directing and supervising the work of the medical, dental, mental health, nursing, technical, clerical, and support service teams that the vendor has assigned to the Dade Correctional Institution.

You ask whether you will have a prohibited conflict of interest under any post-public-employment restriction in the Code of Ethics (Part III, Chapter 112, Florida Statutes) were you to accept the vendor's employment offer and serve as the Health Services Administrator at the Dade Correctional Institution. As explained below, under your unique set of facts, it does not appear the restrictions in Section 112.3185, Florida Statutes, will apply were you to accept the employment offer, but you would be prohibited for two years under Section 112.313(9)(a)4., Florida Statutes, from making any type of representation to your former agency on the vendor's behalf.¹

Turning first to Section 112.3185, Florida Statutes, that statute contains several prohibitions of which the most relevant to your inquiry is Section 112.3185(4), Florida Statutes,² which 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.

The provision prohibits you from being employed with any business entity for two years after you resign from the Department when your employment is related to a contract for contractual services that fell within your responsibilities while at the Department. This two-year prohibition is contract specific; it does not prevent you from working on programs or subject matter related to the Department, but only from working on contracts for contractual services that were within your responsibilities. See CEO 07-10 and CEO 06-3, n.6.

Certain statutory criteria in Section 112.3185(4) are present in your situation. From what you indicate, the contract between the Department and the vendor is for "contractual services"—as you relate it requires the vendor to provide healthcare to incarcerated patients at the Department's correctional institutions—and it appears your potential position with the vendor will be "in connection" with the contract as it will require you to work at a particular correctional institution to ensure all patients are receiving adequate care. The question remains whether the contract with the vendor falls "within your responsibility" as a current Department employee.

The phrase "within responsibility" is not defined in the Code of Ethics. See CEO 11-24. In the past, we have found a contract to be within a public employee's responsibility when he or she—or a subordinate—has monitored or managed the contract, or when a public employee has ultimate authority over a contract. See CEO 19-5, CEO 18-18, CEO 03-8 and CEO 93-2. If the employee merely has incidental contact with a contract, meaning they do not have a substantive role concerning it, then the prohibition in Section 112.3185(4) does not apply. See CEO 18-9, n.5, CEO 06-3 and CEO 93-2.

Here, you state you are not the monitor or manager on the Department's contract with the vendor. You indicate a separate Department employee, over whom you have no supervisory authority, monitors the vendor's performance of the contract in Region 4 of the Department, where the Everglades Correctional Institution and the Dade Correctional Institution are located.³ You also state you have no "contractual oversight" or "decision-making authority" regarding the Department's contract with the vendor, and that your interaction with the vendor "is strictly operational and site-based[,]" meaning you interact with vendor staff only "in the context of [the] day-to-day institutional management and coordination" of your correctional facility. In other words, your involvement with the vendor is not because you have managerial responsibilities concerning the contract, but simply because, as an Assistant Warden, you oversee the general operation of your facility.

It is worth emphasizing that simply because you have no authority to make decisions concerning a contract does not mean you have no responsibilities concerning it. For instance, if your duties as Assistant Warden included evaluating the work performed by the vendor or collaborating with the vendor in providing services, Section 112.3184(4) could apply, even if you were not involved in making overall decisions concerning the contract.

However, the information that you have provided—particularly the information provided while this advisory opinion was being prepared—indicates you do not have the substantive responsibilities concerning the contract that Section 112.3185(4) is meant to address. As described above, you have no role in monitoring the contract. Nor do you review any work performed by the vendor pursuant to the contract. You do indicate the vendor's employees report security-related issues to you concerning Department employees. And you also indicate you are involved in inspecting the medical area of the facility for safety, security, and sanitation, which presumably is the area where the vendor's employees are working. But simply because you receive information from the vendor about security matters or inspect areas of the facility where the vendor may be present does not mean you have responsibilities concerning the vendor's contract. Indeed, you state the contract does not even create a duty on the part of the vendor to maintain the medical area of the facility.

In short, in your role as Assistant Warden, it appears any contact that you have with the vendor is by necessity and relates only to the general management of your correctional institution. You have no specific duties or role concerning the performance of the vendor's contract with the Department. For this reason, the two-year prohibition in Section 112.3185(4) will not apply were you to accept the vendor's employment offer.

That being said, regardless of Section 112.3185(4), another statute will be applicable were you to begin serving as a Health Services Administrator at the Dade Correctional Institution. This statute is Section 112.313(9)(a)4., Florida Statutes, which states:

An agency employee, including an agency employee who was employed on July 1, 2001, in a Career Service System position that was transferred to the Selected Exempt Service System under chapter 2001-43, Laws of Florida, may not personally represent another person or entity for compensation before the agency with which he or she was employed for a period of 2 years following vacation of position, unless employed by another agency of state government.

Essentially, Section 112.313(9)(a)4. places a two-year prohibition on former agency employees representing persons or entities for compensation before their former agencies. For purposes of this prohibition, Section 112.313(9)(a)2.a.(I), Florida Statutes, defines an "employee" as "[a]ny person employed in the executive or legislative branch of government holding a position in the . . .Selected Exempt Service . . ." Because your position as Assistant Warden is classified as SES, you will be subject to the two-year prohibition in Section 112.313(9)(a)4. if you leave that position and enter the private sector.

An initial matter to consider in applying Section 112.313(9)(a)4. is what your "agency" will be for purposes of the statutory prohibition. Past Commission opinions have clarified that your "agency" will be Region 4 of the Department, as that Region encompasses the Everglades Correctional Institution where you are currently employed. See CEO 90-27, CEO 89-20, and CEO 88-79 (finding for purposes of Section 112.313 that the "agency" of a former Department employee will be the region in which his or her correctional institution is located). The Dade Correctional Institution, where the vendor intends to place you, is also located in Region 4. Considering this, the question becomes whether—if you accept the vendor's offer to serve as its Health Services Administrator at the Dade Correctional Institution—you will be required to make any "representations" before Region 4 personnel on the vendor's behalf within two years of leaving your position.

The term "representation" is defined in Section 112.312(22), Florida Statutes, 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 employes of any agency on behalf of a client.

This definition is very broad, precluding almost all contact between you and Region 4 officers and employees during the two-year period. See CEO 07-16, n.5 and CEO 05-4 (both opinions emphasizing the breadth of the definition). Examples of prohibited representations include attending agency meetings on behalf of a new employer, even without speaking (see CEO 07-6, Question 1), as well as communicating with agency personnel orally or in writing. In the past, the Commission has recognized that actions needed to carry out the terms of a contract may not always constitute "representation" within the meaning the prohibition. See, for example, CEO 09-6 and CEO 05-16. However, those opinions are confined to rote, mechanical contact where there is no discretion on the part of the agency that can be influenced (e.g., the mere conveyance of information to agency personnel). See CEO 11-24, n.10, CEO 09-5, and CEO 00-6. If the contact is intended to have the agency or its personnel take or not take some discretionary action, the prohibition will apply. See CEO 12-4, n.6.

Here, certain contact that you might have with Region 4 personnel as the Health Services Administrator at the Dade Correctional Institution might be mechanical or rote in nature. For example, you indicate the Health Services Administrator is responsible for passing along information to facility administration on security issues, such as if an inmate is working in the medical area without being assigned there or if Department personnel are not properly escorting nurses around violent or aggressive inmates. In these situations, it appears the Health Services Administrator merely conveys information about security matters to Region IV personnel. There is no indication that the Health Services Administrator is involved in deciding whether to respond or what actions to take.

Similarly, you relate the Health Services Administrator is responsible for investigating complaints by inmates about the medical care being provided by vendor employees. You indicate the Health Services Administrator investigates each complaint to ensure that the vendor's employees are "conducting their duties and responsibilities as required." Conceivably, such an investigation may involve interviewing or discussing the matter with Region IV personnel, but only to collect information so that the vendor—not the Department—can make an informed decision.

These types of interactions do not appear to involve the Health Services Administrator attempting to influence discretionary decisions of Region IV personnel. In themselves, they do not appear to constitute the type of "representations" that Section 112.313(9)(a)4. prohibits. However, not all interactions between the Health Services Administrator and Region IV personnel may be categorized as this type of rote, mechanical contact.

One area of concern is the potential interactions that the Health Services Administrator may have if issues arise during medical inspections. You state the medical areas of each correctional institution are inspected "[c]ontinuously by staff and at least weekly by [institution] administration." If issues arise during an inspection, you indicate it is the responsibility of the Health Services Administrator assigned to that facility to coordinate "a plan of action [with institution administration] to resolve those issues." Presumably then, if you are employed as the Health Services Administrator at the Dade Correctional Institution, and if issues arise following an inspection, you will be responsible for working with Institution personnel in deciding what action(s) to take.

In addition, you relate the Health Services Administrator at the Dade Correctional Institution works with facility administration to resolve conflicts between Institution staff and vendor employees, such as when Institution staff is not cooperating, is hindering patient care, or is violating the Health Insurance Portability and Accountability Act (HIPAA). Some of these interactions may simply involve the Health Service Administrator reporting a conflict and leaving the matter with facility administration to address, which would not be a prohibited "representation." However, it is conceivable that more serious conflicts will require increased involvement by the Health Services Administrator, and that involvement, in turn, may influence personnel-related decisions by Region 4 administration.

These examples are not an exhaustive list, but they at least indicate the Health Services Administrator at the Dade Correctional Institution likely will have much more than rote, mechanical contact with Region IV officers and staff. This is of particular concern as you indicate the Health Services Administrator at the Dade Correctional Institution is required to be physically present and on-site, which increases the risk of you making a prohibited "representation" to a Region IV officer or employee. Any comment to Dade Correctional Institution personnel in your capacity as the Health Services Administrator beyond the mere conveyance of information—even your attendance in that capacity at an Institution meeting or workshop—will violate the statute. Essentially, while the two-year restriction in Section 112.313(9)(a)4. does not preclude you from accepting the employment offer from the vendor, it will limit the amount and type of communication that you may have with Institution personnel on the vendor's behalf.

In summary, the prohibitions in Section 112.3185 will not apply were you to accept the position of Health Services Administrator at the Dade Correctional Institution. However, you will be subject to the restriction in Section 112.313(9)(a)4., which will limit the types of communications that you may have with Region 4 personnel for two years after leaving public employment.

Your question is answered accordingly.

ORDERED by the State of Florida Commission on Ethics meeting in public session on June 6, 2025, and RENDERED this 11th day of June 2025.

____________________________________

Luis M. Fusté, Chair

^[1]Commission staff provided letters to you concerning your inquiry on April 4, 2025, and April 15, 2025. This advisory opinion is based on the information that you initially provided during the drafting of those letters, as well as on further information that you subsequently provided during the preparation of this opinion. The guidance in this opinion supersedes any earlier recommendations provided in the letters.