HomeMy WebLinkAbout11-527 Lentes
ADVICE OF COUNSEL
May 20, 2011
Brian Lentes
Liberty Healthcare Corp. Contractor
Department of Public Welfare
BPI
Petry Building
rd
#17 3 Floor
116 East Azalea Drive
Harrisburg, PA 17110-3594
11-527
Dear Mr. Lentes:
This responds to your letter dated April 5, 2011, 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.C.S. § 1101 et seq., would impose any restrictions upon employment of a
Management Policy Analyst 2 with the Governor’s Office of Administration (“Office of
Administration”), Office of Strategic Services, following termination of employment with
the Office of Administration.
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.
At the time that you submitted your inquiry, you were employed as a
Management Policy Analyst 2 with the Office of Strategic Services within the Office of
Administration. You have submitted copies of your official Commonwealth position
description and an organizational chart for the Office of Administration, both of which
documents are incorporated herein by reference. A copy of the job classification
specifications for the position of Management Policy Analyst 2 (job code 09385) has
been obtained and is also incorporated herein by reference.
You stated that you had taken a new position as a Healthcare Analyst with
Liberty Healthcare Corporation (“Liberty”), with a tentative start date of May 2, 2011.
You have submitted a copy of the position description for the aforesaid position, which
document is incorporated herein by reference.
You stated that Liberty has a contract with the Pennsylvania Department of
General Services and that such contract involves the Pennsylvania Department of
Public Welfare (“DPW”). You stated that in your position as a Healthcare Analyst with
Liberty, you would deal with the Health Information Technology Initiative - Electronic
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May 20, 2011
Page 2
Health Record Incentive Program and the State Medicaid Health Information
Technology Plan. You stated that you would not have any further association with the
Office of Administration and that you would deal directly with DPW’s Director of Bureau
of Policy Analysis and Planning and Director of Bureau of Program Integrity.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any restrictions upon you in your new position with Liberty.
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 Management Policy Analyst 2 for the Office of Administration, Office of
Strategic Services, 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 employment with the Office of Administration,
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
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May 20, 2011
Page 3
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 “represent” 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 public
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
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May 20, 2011
Page 4
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 the Office of Administration would be
the Office of Administration in its entirety, including but not limited to the Office of
Strategic Services. Therefore, for the first year following termination of your
employment with the Office of Administration, Section 1103(g) of the Ethics Act would
apply and restrict “representation” of a “person” before the Office of Administration.
You are advised that during the first year following termination of your
employment with the Office of Administration, Section 1103(g) of the Ethics Act would
restrict you from performing any job duty(ies) for your new employer, Liberty, that would
involve prohibited representation before the Office of Administration.
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 or employment, or confidential information received by being in
the public position, 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 herein is the
applicability of the Governor’s Code of Conduct.
Conclusion:
As a Management Policy Analyst 2 with the Governor’s Office of
Administration (“Office of Administration”), Office of Strategic Services, you w ould be
considered 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, 51 Pa. Code § 11.1 et seq. Upon termination of employment with the
Office of Administration, you would become a “former public employee” subject to
Section 1103(g) of the Ethics Act. The former governmental body would be the Office
of Administration in its entirety, including but not limited to the Office of Strategic
Services. For the first year following termination of your employment with the Office of
Administration, Section 1103(g) of the Ethics Act would apply and restrict
“representation” of a “person” before the Office of Administration. In particular, Section
1103(g) of the Ethics Act would restrict you from performing any job duty(ies) for your
new employer, Liberty Healthcare Corporation, that would involve prohibited
representation before the Office of Administration. The restrictions as to representation
outlined above must be followed. Lastly, 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
Lentes, 11-527
May 20, 2011
Page 5
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