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HomeMy WebLinkAbout07-582 KRIEGERWilliam G. Krieger, Ph.D. One Meadowbrook Drive Selinsgrove, PA 17870 ADVICE OF COUNSEL September 11, 2007 07 -582 Dear Dr. Krieger: This responds to your letter of August 7, 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 Welfare Program Executive 2 following termination of service with the Commonwealth of Pennsylvania Department of Public Welfare, Office of Medical Assistance Programs. Facts: You request an advisory from the State Ethics Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. On June 30, 2007, you retired from Commonwealth employment as a Welfare Program Executive 2 with the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), Office of Medical Assistance Programs ( "OMAP "). You have submitted a copy of your official DPW position description, which is incorporated herein by reference. A copy of the job classification specifications for your former position (job code 49890) has been obtained and is also incorporated herein by reference. You state that in your former position, you worked to enhance the overall quality of the delivery of medical services to Medicaid program enrollees by helping providers develop programs to make care provision more efficient and reduce long -term costs of providing medical care. You assisted Medical Assistance providers with implementation of Quality Improvement initiatives that involved the proactive prevention of serious and chronic health problems by mounting campaigns against childhood obesity, tobacco use, and domestic violence. You also monitored a contract between OMAP and Comprehensive Neuroscience ( "CNS "). CNS was helping OMAP track certain prescribing patterns and medication use patterns in order to ensure the appropriateness and optimization of both such patterns. Having retired from Commonwealth employment, you have been offered a part - time position, working approximately one day per week, as a Facility Advocacy Specialist with the Disability Rights Network of Pennsylvania ( "DRNPA "). You note that until recently, DRNPA was known as Pennsylvania Protection and Advocacy, Inc. Krieger, 07 -582 September 11, 2007 Page 2 You have submitted a copy of a Position Guide for the aforesaid Facility Advocacy Specialist position, which document is incorporated herein by reference. Per the Position Guide, a Facility Advocacy Specialist is responsible for delivery of advocacy programs to persons with mental retardation who reside in mental retardation centers. This position includes the following responsibilities, designated as "major responsibilities ": • Performing individual and systemic advocacy services for persons with mental retardation who reside in mental retardation centers; • Working with individuals and their families, the facility, the state, the county, and providers to facilitate movement of individuals into the community; • Providing continuity of services for residents moving to the community; and • Ensuring that advocacy services meet the requirements of all state and federal regulations. As a Facility Advocacy Specialist with DRNPA, you would be performing duties involving Selinsgrove Center. You note that Selinsgrove Center is part of the Office of Developmental Programs ( "ODP ") within DPW. The DRNPA Facility Advocacy Specialist reports to the DRNPA Facility Team Leader, who is headquartered at Selinsgrove Center. You state that in your prospective position with DRNPA, you would work to assure that the service delivery system is functioning properly for all individuals at Selinsgrove Center, rather than advocate for enhanced treatment for specific individuals. Your primary duties would be to attend Selinsgrove Center's Human Rights Committee meetings to review proposed treatment plans and ensure that the rights of individuals who live at Selinsgrove Center are protected. You would also review abuse investigations to ensure that such investigations are properly conducted and thoroughly completed. Your duties would not include any managerial, administrative, or policy development functions. You state that in performing your duties as a Facility Advocacy Specialist, you would report internally to your DRNPA supervisor, who, as noted above, is headquartered at Selinsgrove Center. Your work would be reviewed by DRNPA executives, and all official contact or discussion of issues with DPW officials would occur through your DRNPA supervisor or DRNPA executives. You state that your duties would not involve any direct lobbying of or advocacy with administrative or executive staff of ODP. You state that your former position with DPW was unrelated to the delivery of services specifically designed for individuals with developmental disabilities. In your former position with DPW, you did not have any contact with any Commonwealth staff in ODP who specifically serve individuals with developmental disabilities. Based upon the above submitted facts, you seek guidance as to whether Section 1103(g) of the Ethics Act would prohibit you from accepting the position of Facility Advocacy Specialist with DRNPA during the first year following your retirement from DPW. 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 Krieger, 07 -582 September 11, 2007 Page 3 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. In the former capacity as a Welfare Program Executive 2 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 termination of Commonwealth employment, you became 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. Krieger, 07 -582 September 11, 2007 Page 4 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. 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 are deemed to have been associated upon termination of public service is DPW in its entirety, including but not limited to OMAP. Therefore, for the first year following termination of service with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. You are advised that Section 1103(.) of the Ethics Act would not prohibit you from accepting employment with DRNPA. However, during the first year following your retirement from DPW, Section 1103(g) of the Ethics Act would prohibit you from Krieger, 07 -582 September 11, 2007 Page 5 performing any lob duties as a DRNPA employee that would involve prohibited representation before DPW as set forth above. Under the submitted facts, it would appear to be impossible for you to perform the functions of a Facility Advocacy Specialist with DRNPA as to Selinsgrove Center, a facility of your former governmental body, DPW, without running afoul of Section 1103(g) of the Ethics Act. Cf., Metzgar, Opinion 06 -002 (holding that where a former Auditor 11 for DPW's Bureau of Long Term Care Programs, Division of Nursing Home Rates, sought employment as a financial representative with a private company working out of a DPW field office, it would be impossible for such individual to perform the functions of the prospective employment position without engaging in prohibited representation before DPW in contravention of Section 1103(g) of the Ethics Act). The fact that Selinsgrove Center is not part of OMAP is irrelevant. During the first year following your retirement from Commonwealth employment, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in prohibited representation before DPW in its entirety. See, Metzgar, supra; cf., Ziegler, Opinion 98 -001. Based upon the facts that have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as a Welfare Program Executive 2 with the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), Office of Medical Assistance Programs ( "OMAP "), you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon retiring from Commonwealth employment, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is DPW in its entirety, including but not limited to OMAP. For one year following your retirement from Commonwealth employment, Section 1103(g) of the Ethics Act would restrict you from engaging in activity that would constitute prohibited representation before DPW. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with the Disability Rights Network of Pennsylvania ( "DRNPA "). However, during the first year following your retirement from DPW, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties as a DRNPA employee that would involve prohibited representation before DPW as set forth above. Under the submitted facts, it would appear to be impossible for you to perform the functions of a Facility Advocacy Specialist with DRNPA as to Selinsgrove Center, a facility of your former governmental body, DPW, without running afoul of Section 1103(g) of the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, since service in your former Commonwealth position has been terminated, as outlined above, the Ethics Act would require that a Statement of Krieger, 07 -582 September 11, 2007 Page 6 Financial Interests be filed by no later than May 1 of the year after termination of service. 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