HomeMy WebLinkAbout13-547 McCurdy
ADVICE OF COUNSEL
June 26, 2013
Pamela A. McCurdy
1410 Mountain Road
Dauphin, PA 17018
13-547
Dear Ms. McCurdy:
This responds to your letter dated May 7, 2013, 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 Program
Analyst 3 following termination of employment with the Pennsylvania Department of
Public Welfare (“DPW”).
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 are currently employed as a Program Analyst 3 with DPW in the Bureau of
Data and Claims Management (“Bureau”) within the Office of Medical Assistance
Programs (“OMAP”). You have submitted copies of your official DPW position
description and organization charts for the Bureau and OMAP, which documents are
incorporated herein by reference. A copy of the job classification specifications for the
position of Program Analyst 3 (job code 08070) has been obtained and is also
incorporated herein by reference.
Per your official DPW Position Description, you perform advanced and complex
data analysis, research and data preparation in support of the Bureau. You perform
quantitative and qualitative analysis of Medical Assistance programs/projects and
system support. You analyze and interpret quantitative information for OMAP/Bureau
senior management staff, budget personnel, comptroller personnel, various state and
federal agencies, and various other stakeholders to evaluate program performance and
efficiencies as well as system improvements. You evaluate data collection and analyze
reports for OMAP/Bureau staff, which serve in part as the basis for adjusting, deleting,
or adding programs and/or making system improvements. You independently develop
evaluation design and negotiate with the requesting area to determine evaluation
parameters and methods and to establish completion dates. You lead or participate on
special projects as assigned by the Section Chief. You make decisions independently
within established general guidelines. Your supervisor approves all responses, reports
and presentations before being released. Position Description, at 1-3.
McCurdy, 13-547
June 26, 2013
Page 2
Per the job classification specifications under job code 08070, a Program Analyst
3 performs advanced work associated with the analysis and evaluation of
Commonwealth agency programs or projects. Work involves, inter alia, analyzing
programs or projects, synthesizing the data gathered to determine the extent to which
goals, objectives, and needs served are being met, assessing the program or project
impact, and reporting this information. Work may also involve preparing portions of the
agency’s budget submittal as well as supervising lower level analysts. Job
Classification Specifications, at 1-2.
You state that in your position with DPW, you present data to upper
management. You may make recommendations to upper management, which makes
the decisions.
You state that you plan to leave Commonwealth employment in July 2013 and
that you are considering two post-employment scenarios. In the first scenario, you
might accept a part-time position with a private firm (“Firm”) in which you would work
with data from DPW, including data that you currently work with as a Program Analyst 3.
In the second scenario, you would be hired by a contracting agency (“Agency”) to work
as a part-time contractor for DPW, possibly OMAP/the Bureau, and you would perform
work similar to your current work with DPW. You would be paid by the Agency and
would report to a DPW supervisor.
Based upon the above submitted facts, you ask whether, in your current position
as a Program Analyst 3 with DPW, you would be subject to the Ethics Act, and if so:
(1) Whether the Ethics Act would impose any restrictions upon you with
regard to accepting a position with the Firm that would involve working
with data from DPW, and in particular with regard to directly contacting
DPW staff if you would have a question about the data or about what
DPW would be trying to accomplish with a project; and
(2) Whether the Ethics Act would impose any restrictions upon you with
regard to working as a part-time contractor for DPW through the Agency.
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 further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion/advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion/advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may, and shall, be addressed.
The Ethics Act defines the term “public employee” as follows:
§ 1102. Definitions
McCurdy, 13-547
June 26, 2013
Page 3
"Public employee."
Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis nature
on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The Regulations of the State Ethics Commission similarly define the term “public
employee” and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
McCurdy, 13-547
June 26, 2013
Page 4
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of
the Commonwealth in teaching as distinguished from
administrative duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief purchasing
agents, grant and contract managers, administrative officers,
housing and building inspectors, investigators, auditors, sewer
enforcement officers and zoning officers in all governmental
bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers, construction
workers, equipment operators and recreation directors.
(B) Law clerks, court criers, court reporters, probation
officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by an
objective test. The objective test applies the Ethics Act’s definition of the term “public
employee” and the related regulatory criteria to the powers and duties of the position
itself. Typically, the powers and duties of the position are established by objective
sources that define the position, such as the job description, job classification
specifications, and organizational chart. The objective test considers what an individual
McCurdy, 13-547
June 26, 2013
Page 5
has the authority to do in a given position based upon these objective sources, rather
than the variable functions that the individual may actually perform in the position. See,
Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion
04-002;Shienvold, Opinion 04-001; Shearer, Opinion 03-011. The Commonwealth Court
of Pennsylvania has specifically considered and approved this Commission’s objective
test and has directed that coverage under the Ethics Act be construed broadly and that
exclusions under the Ethics Act be construed narrowly. See, Quaglia v. State Ethics
Commission, 986 A.2d 974 (Pa. Cmwlth. 2010), amended by, 2010 Pa. Commw. LEXIS
8 (Pa. Cmwlth. January 5, 2010), allocatur denied, 607 Pa. 708, 4 A.3d 1056 (Pa.
2010); Phillips, supra.
The first portion of the statutory definition of “public employee” includes
individuals with authority to take or recommend official action of a nonministerial nature.
65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public
employee, as set forth in 51 Pa. Code § 11.1(“public employee”)(ii), include not only
individuals with authority to make final decisions but also individuals with authority to
forward or stop recommendations from being sent to final decision-makers; individuals
who prepare or supervise the preparation of final recommendations; individuals who
make final technical recommendations; and individuals whose recommendations are an
inherent and recurring part of their positions. See, e.g., Reese/Gilliland, Opinion 05-
005.
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of your duties and responsibilities, the necessary conclusion is that as a Program Analyst
3 for DPW, you are a "public employee” subject to the Ethics Act.
It is clear that in your capacity as a Program Analyst 3 with DPW, you have the
ability to take or recommend official action with respect to subparagraph (5) within the
definition of “public employee” as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Your
duties/authority with regard to analyzing/evaluating Commonwealth agency programs or
projects as well as your authority to prepare portions of the agency’s budget submittal
and supervise lower level analysts would be sufficient to establish your status as a
public employee. The foregoing duties/authority would also meet the criteria for
determining your status as a public employee under the Regulations of the State Ethics
Commission, specifically at 51 Pa. Code § 11.1, “public employee,” subparagraphs (i)
and (ii). Therefore, you are a “public employee” subject to the Ethics Act.
Consequently, upon termination of your employment with DPW, 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).
McCurdy, 13-547
June 26, 2013
Page 6
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 official/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 a 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
McCurdy, 13-547
June 26, 2013
Page 7
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 your employment with DPW would be DPW in its
entirety, including but not limited to the Bureau and OMAP. Therefore, for the first year
following termination of your employment with DPW, Section 1103(g) of the Ethics Act
would apply and restrict “representation” of a “person” before DPW.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific
questions shall now be addressed.
In response to your first question, you are advised as follows. Section 1103(g) of
the Ethics Act would not prohibit you from accepting a position with the Firm wherein
you would work with data from DPW. However, during 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 involve prohibited representation
before DPW as delineated above. Section 1103(g) of the Ethics Act would prohibit you
from directly contacting DPW staff regarding data or a project as such activity(ies) would
go beyond making general informational inquiries to DPW to secure information which is
available to the general public.
With regard to your second question, you are advised that during the first year
following termination of your employment with DPW, Section 1103(g) of the Ethics Act
would prohibit you from working as a part-time contractor for DPW through the Agency,
as such would necessarily involve prohibited representation before DPW.
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.
McCurdy, 13-547
June 26, 2013
Page 8
Conclusion:
As a Program Analyst 3 for the Pennsylvania Department of Public
Welfare (“DPW”) in the Bureau of Data and Claims Management (“Bureau”) within the
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., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et seq. Upon termination of your employment 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 the
Bureau and OMAP. For the first year following termination of your employment with
DPW, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a
“person” before DPW. 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
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