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Home My WebLink About07-564 FettermanVicky M. Fetterman, R.N. 1300 Regency Circle Harrisburg, PA 17110 Dear Ms. Fetterman: ADVICE OF COUNSEL August 2, 2007 07 -564 This responds to your letter of June 23, 2007, and your faxed transmission received June 28, 2007, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would present any restrictions upon employment of a Medical Facility Records Examiner following retirement from the Commonwealth of Pennsylvania Department of Public Welfare, Office of Medical Assistance Programs. Facts: You are a registered nurse. At the time you submitted your inquiry, you were employed as a Medical Facility Records Examiner by the Office of Medical Assistance Programs ( "OMAP ") within the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "). You stated that you planned to retire from Commonwealth employment on June 29, 2007. You have submitted a copy of your DPW position description, which is incorporated herein by reference. A copy of the job classification specifications for your DPW position (job code 39570) has been obtained and is also incorporated herein by reference. You ask whether, following your retirement from DPW, the Ethics Act would prohibit you from working part time with OMAP as a contract nurse through Avysion IT. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. Fetterman, 07 -564 August 2, 2007 Page 2 While serving as a Medical Facility Records Examiner for DPW, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the position description and the job classification specifications, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon your retirement from DPW, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": 65 Pa.C.S. § 1102. § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. Fetterman, 07 -564 August 2, 2007 Page 3 The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the former ublic official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but this must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Section 1103(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official/ public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you would be deemed to have been associated upon retirement from DPW would be DPW in its entirety, including but not limited to OMAP. Therefore, for the first year following your retirement from DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. Turning to the specific question that you have posed, you are advised that during the first year following your retirement from DPW, Section 1103(g) of the Ethics Act would prohibit you from working part time with DPW, including but not limited to OMAP, as a contract nurse through Avysion IT. Performance of such work would necessarily involve prohibited representation before your former governmental body (for example, through personal appearances before your former governmental body or the submission Fetterman, 07 -564 August 2, 2007 Page 4 of written documents containing your name to your former governmental body). Cf., Metzgar, Opinion 06 -002; Ziegler, Opinion 98 -001. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not addressed is the applicability of the Governor's Code of Conduct. Conclusion: While serving as a Medical Facility Records Examiner with the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Office of Medical Assistance Programs ("OMAP"), you would be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon your retirement from DPW, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DPW in its entirety, including, but not limited to OMAP. The restrictions as to representation outlined above must be followed. During the first year following your retirement from DPW, Section 1103(g) of the Ethics Act would prohibit you from working part time with DPW, including but not limited to OMAP, as a contract nurse through Avysion IT. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, to the extent you would retire from DPW, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after retirement. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requester has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 - 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Robin M. Hittie Chief Counsel