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HomeMy WebLinkAbout07-585 SMETAKBethAnn M. Smetak 106 Sunset Avenue Apartment 2 Harrisburg, PA 17112 Dear Ms. Smetak: ADVICE OF COUNSEL September 28, 2007 07 -585 This responds to your letter received August 24, 2007, and your faxed transmission of August 27, 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 Special Assistant to the Secretary of Public Welfare, with a working title of Chief of Staff for the Office of Children, Youth and Families, following termination of service with the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "). 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. At the time you submitted your inquiry, you were employed with DPW as a Special Assistant to the Secretary of Public Welfare, with a working title of Chief of Staff for the Office of Children, Youth and Families. You have submitted a copy of your official DPW position description, which is incorporated herein by reference. It is noted that said position description lists your job code as 08670. A copy of the job classification specifications under job code 08670 has been obtained and is also incorporated herein by reference. You stated that you would be leaving state employment effective August 29, 2007, to work as the Chief Compliance Officer for AmeriChoice of Pennsylvania ( "AmeriChoice "). In support of your advisory request, you have submitted copies of web pages from the AmeriChoice website and the Pennsylvania Medicaid Managed Care Organization Directory. AmeriChoice currently contracts with DPW to provide physical managed care health insurance to Medicaid recipients. You state that the u osition of Chief Compliance Officer will cover broad areas of operational and financial functions of the AmeriChoice Smetak, 07 -585 September 28, 2007 Page 2 Health Plan under contract with DPW. You further state that DPW's Office of Medical Assistance Programs oversees the Physical Health component of the Health Choices Program. You note that it is your understanding that following termination of your Commonwealth service, you would be restricted with regard to interacting with DPW as a representative of AmeriChoice. You request guidance as to whether you would be permitted to represent AmeriChoice before other state agencies or bodies such as the Department of Health, the Department of Insurance, the Governor's Office including the Office of the Budget, and the Legislative Branch of the Commonwealth. You also ask whether you would be permitted to represent AmeriChoice at meetings with the above - listed agencies or bodies if DPW staff would be present at the meetings but would not organize or lead the meetings. 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. As a Special Assistant to the Secretary of Public Welfare, with a working title of Chief of Staff for the Office of Children, Youth and Families, 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 job description, which when reviewed on an objective basis, indicates 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 public service, you would become a "former public employee" subject to the restrictions of 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 ": § 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: Smetak, 07 -585 September 28, 2007 Page 3 § 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. 65 Pa. C. S. § 1102. 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. Smetak, 07 -585 September 28, 2007 Page 4 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 termination of employment with DPW, hereinafter collectively referred to as your "former governmental body," would be: DPW in its entirety, including but not limited to the Office of Children, Youth and Families, as well as any boards, commissions, or other governmental bodies that you served as an employee, appointee /member, or designee. See, Confidential Opinion, 01 -006. Therefore, for the first year following termination of employment with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your former governmental body as identified above. Turning to your specific questions, in response to your first specific inquiry, you are advised that Section 1103(g) of the Ethics Act would apply to restrict you from engaging in prohibited "representation" before your former governmental body as delineated above. Section 1103(g) would not prohibit you from representing AmeriChoice before state agencies or bodies not encompassed within your "former governmental body" as delineated above. As to your second specific inquiry, you are advised as follows. In representing AmeriChoice at meetings that would include state agencies or bodies, you would be engaging in "representation" before the meeting attendees. You are advised that if DPW staff would attend such meetings where you would be representing AmeriChoice, you would be engaging in prohibited representation before your former governmental body even if the DPW staff members would not organize or lead the meetings. 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: As a Special Assistant to the Secretary of Public Welfare, with the working job title of Chief of Staff for the Office of Children, Youth and Families, you would be considered a "public e as that term is defined in the Public Official and Employee Ethics Act ( "Ethics employee" ct' ), 65 Pa.C.S. § 1101 et seq. Upon termination of employment with DPW, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. Upon termination of employment with DPW, the governmental bodies with which you would be deemed to have been associated, Smetak, 07 -585 September 28, 2007 Page 5 hereinafter collectively referred to as your "former governmental body," would be: DPW in its entirety, including but not limited to the Office of Children, Youth and Families, as well as any boards, commissions, or other governmental bodies that you served as an employee, appointee /member or designee. Therefore, for the first year following termination of your employment with DPW, Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited "representation" of "persons" before your former governmental body as identified above. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, to the extent the aforesaid Commonwealth employment has been terminated, 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 termination of such employment. 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