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HomeMy WebLinkAbout09-553 KnowltonMel Knowlton 8 Carleton Court Camp Hill, PA 17011 Dear Mr. Knowlton: ADVICE OF COUNSEL May 19, 2009 09 -553 This responds to your letter dated April 14, 2009, and your email of April 20, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any restrictions upon an annuitant who, following retirement from the Commonwealth of Pennsylvania, has provided services to the Pennsylvania Department of Public Welfare pursuant to 71 Pa.C.S. § 5706(A.1) ( "the 95 -day annuitant program "), with regard to accepting a position with an independent non - profit organization designated by the Governor as the agency to provide protection and advocacy for persons with developmental disabilities, mental illness, and other disabilities. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post - employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You currently work with the Pennsylvania Department of Public Welfare ( "DPW "), Office of Developmental Programs, as an annuitant under the 95 -day annuitant program. You have submitted a copy of the "Annuitant Request and Justification" pertaining to your service as an annuitant, which document is incorporated herein by reference. You state that your current responsibilities as an annuitant include drafting a broad range of proposed policies, developing draft responses to policy questions, and being the lead person to develop draft responses to proposed bills in the Pennsylvania General Assembly that would affect people with disabilities. You state that you are being considered for a position with the Disability Rights Network ( "DRN "). You state that DRN is an independent non - profit organization designated by the Governor as the agency to provide protection and advocacy for persons with developmental disabilities, mental illness, and other disabilities. You state that DRN operates under federal regulations. You state that you would begin working in the DRN position on July 1, 2009, and that the position would be funded directly by the federal government. You state that Knowlton, 09 -553 May 19, 2009 Page 2 your potential responsibilities in the DRN position would include reviewing inspection reports developed by the Pennsylvania Department of Health ( "Department of Health ") from its inspections of private intermediate care facilities for the mentally retarded (hereinafter referred to as "ICFs "). You state that ICFs, which are licensed under DPW Regulations and funded under Medicaid, must meet certain federal requirements that were adopted under DPW's Regulations. The decisions on whether to certify and license ICFs are made based upon inspection reports of inspectors from the Department of Health. You state that in reviewing such inspection reports, it would be your role to identify incidents or complaints of abuse and neglect of persons with mental retardation. You further state that there may be instances where you would have to visit the site where the alleged abuse or neglect occurred. You state that other duties in the DRN position may include monitoring the relocation activities and supports for people with mental retardation who live in personal care homes and records reviews of people with mental retardation who live in state hospitals. You state that all activities in the DRN position, whether written, verbal, or face - to -face, would not include any direct contact with DPW staff. You further state that all communication or action resulting from your work in the DRN position would be taken by non -DPW affiliated staff at DRN. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to accept the position with DRN. 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. It is clear that when an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the individual becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. Based upon the duties and authority set forth in the Annuitant Request and Justification, the necessary conclusion is that when you commenced providing services to DPW as an annuitant in said position, you became 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; Graves, supra; McGlathery, supra. Consequently, when you would cease providing such annuitant services, 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 Knowlton, 09 -553 May 19, 2009 Page 3 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. 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. Knowlton, 09 -553 May 19, 2009 Page 4 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. Under the facts that you have submitted, when you would cease providing services to DPW in your current annuitant position, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) would commence. The governmental body with which you would be deemed to have been associated upon termination of the aforesaid service would be DPW in its entirety, including but not limited to the Office of Developmental Programs. Therefore, until the expiration of a full one -year period following your termination of service as an annuitant with DPW, or until you would resume providing services to DPW under the 95 -day annuitant program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before DPW with promised or actual compensation as set forth above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised as follows. The Ethics Act would not prohibit you from accepting a position with DRN. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from performing any job duties that would involve prohibited representation before DPW as outlined above. 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. Knowlton, 09 -553 May 19, 2009 Page 5 Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: When you commenced providing services to the Pennsylvania Department of Public Welfare ( "DPW ") in your current position as an annuitant pursuant to 71 Pa.C.S. § 5706(A.1) ( "the 95 -day annuitant program "), you became a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission. When you would cease providing services to DPW in your current annuitant position, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of the aforesaid service would be DPW in its entirety, including but not limited to the Office of Developmental Programs. Until the expiration of a full one -year period following your termination of service as an annuitant with DPW, or until you would resume providing services to DPW under the 95 -day annuitant program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before DPW with promised or actual compensation as set forth above. The restrictions as to representation outlined above must be followed. The Ethics Act would not prohibit you from accepting a position with the Disability Rights Network. However, when Section 1103(g) of the Ethics Act would be applicable, plicable, Section 1103(g) would prohibit you from performing any job duties that would prohibited representation before DPW as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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