Loading...
HomeMy WebLinkAbout07-607 STADLERNancy G. Stadler RN, MSN 7 Country Manor Lane New Freedom, PA 17349 Dear Ms. Stadler: ADVICE OF COUNSEL December 31, 2007 07 -607 This responds to your letter of November 16, 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 Nursing Services Consultant following termination of service with the Commonwealth of Pennsylvania, Department of Public Welfare, Office of Developmental Programs. Facts: You are currently employed as a Nursing Services Consultant with the C ommonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), Office of Developmental Programs ( "ODP "). You have attached 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 30755) has also been obtained and is incorporated herein by reference. You are considering applying for a position as a contracted Risk Manager with the Tuscarora Intermediate Unit ( "Tuscarora IU"). You state that this position would "work for the Office of Developmental Programs (DPW)." (November 16, 2007, letter of Nancy Stadler). You state that you do not have an official position description for the Risk Manager Position. You have submitted a copy of a preliminary position description for the aforesaid position, which document is incorporated herein by reference. In an email sent to Commission staff on December 31, 2007, you confirmed that you would resign from your position as a Nurse Consultant with DPW if you would be chosen for and would accept a position as a contracted Risk Manager through Tuscarora IU. Based upon the above, you ask whether the Ethics Act would prohibit you from applying for and accepting a position as a contracted Risk Manager through Tuscarora 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 Stadler, 07 -607 December 31, 2007 Page 2 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 Nursing Services Consultant for DPW, ODP, 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; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) 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 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: § 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. Stadler, 07 -607 December 31, 2007 Page 3 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. 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 public service would be DPW in its entirety including, but not limited to, ODP. 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. Turning to the specific question that you have posed, you are advised as follows. Upon terminating employment with DPW, Section 1103(g) of the Ethics Act would not prohibit you from accepting employment or entering into a contract with Stadler, 07 -607 December 31, 2007 Page 4 Tusarora IU. However, during the first year following termination of employment with DPW, Section 1103(g) of the Ethics Act would prohibit you from performing any lob duties as a Tuscarora IU employee /contractor that would involve prohibited representation before DPW as set forth above. Cf., Briechle, Opinion 04 -013. Section 1103(g) of the Ethics Act would clearly prohibit you from working with DPW, including but not limited to ODP, as a contracted Risk Manager through Tuscarora IU. Cf., Metzgar, Opinion 06 -002; 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 or give 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 is the applicability of the Governor's Code of Conduct. Conclusion: As a Nursing Services Consultant with the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), Office of Developmental Programs ( "ODP "), 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 termination of service with 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 ODP. The restrictions as to representation outlined above must be followed. During the first year following your termination of service with DPW, Section 1103(g) of the Ethics Act would prohibit you from working with DPW, including but not limited to ODP, as a contracted Risk Manager through Tuscarora Intermediate Unit. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be 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 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. Stadler, 07 -607 December 31, 2007 Page 5 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