HomeMy WebLinkAbout15-562 Aubrey
ADVICE OF COUNSEL
November 2, 2015
Robert Aubrey
823 Kingston Drive
McDonald, PA 15057
15-562
Dear Mr. Aubrey:
This responds to your letter dated September 8, 2015, by which you requested
an advisory from the Pennsylvania State Ethics Commission (“Commission”).
Issue:
Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65
Pa.C.S. § 1101 et seq., would impose restrictions upon employment of a Safety
Inspection Supervisor following termination of employment with the Pennsylvania
Department of Health (“Department of Health”).
Facts:
You request an advisory from the 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 Safety Inspection Supervisor with the
Department of Health in the Division of Safety Inspection, in which capacity you serve
as the Pittsburgh field office supervisor. You have submitted a copy of a position
description for the position of Safety Inspection Supervisor, which document is
incorporated herein by reference. A copy of the job classification specifications for the
position of Safety Inspection Supervisor (job code 71071) has been obtained and is also
incorporated herein by reference.
You state that in your current position with the Department of Health, you
oversee the inspection of healthcare facilities throughout the northwest region of
Pennsylvania for both state and federal certification.
You are interested in potential employment with a local hospital system (the
“Hospital System”) in the position of Corporate Safety Officer, in which capacity you
would be responsible for ensuring that multiple hospital and ambulatory surgery centers
are operating safely and following all applicable state and federal codes. You have
submitted a copy of a description of the job responsibilities for the aforesaid position,
which document is incorporated herein by reference. You state that in such position,
you would be working to ensure the building structures are in compliance with required
codes as well as to ensure the safety of all staff and patients within the buildings. You
further state that you would not be representing the Hospital System or consulting for it
on any matter before the Commonwealth.
Aubrey, 15-562
November 2, 2015
Page 2
You seek guidance as to whether the Ethics Act would impose any prohibitions
or restrictions upon you with regard to accepting employment as a Corporate Safety
Officer for the Hospital System.
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.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a)Conflict of interest.--
No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest."
Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment."
The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act’s definition of the term
“conflict” or “conflict of interest,” 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public office/employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
Aubrey, 15-562
November 2, 2015
Page 3
authority of office is not limited merely to voting, but extends to any use of authority of
office including, but not limited to, discussing, conferring with others, and lobbying for a
particular result. Juliante, Order 809.
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 anything of monetary value 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 questions presented.
As a Safety Inspection Supervisor for the Department of Health, 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 your employment with the Department of
Health, 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.
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November 2, 2015
Page 4
"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
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
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November 2, 2015
Page 5
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 the Department of Health would
be the Department of Health in its entirety, including but not limited to the Division of
Safety Inspection. Therefore, for the first year following termination of your employment
with the Department of Health, Section 1103(g) of the Ethics Act would apply and
restrict “representation” of a “person” before the Department of Health.
You are advised that Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment as a Corporate Safety Officer for the Hospital System.
However, during the first year following termination of your employment as a Safety
Inspection Supervisor for the Department of Health, Section 1103(g) of the Ethics Act
would prohibit you from performing any job duty(ies) that would involve prohibited
representation before the Department of Health as delineated above.
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationship with the Hospital
System subject to the conditions that you: (1) did not use the authority of your public
position in matter(s) pertaining to the Hospital System when you had an actual or
reasonable expectation that you would enter into a business/employment arrangement
with the Hospital System or would otherwise receive a private pecuniary benefit relating
to the Hospital System; and (2) did not otherwise use the authority of your public
position or confidential information received as a result of being in your public position in
furtherance of securing a business/employment arrangement with the Hospital System
or other private pecuniary benefit relating to the Hospital System. Cf., Desmond,
Opinion 08-004.
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 Safety Inspection Supervisor for the Pennsylvania Department
of Health (“Department of Health”), 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 the Department of Health, you would
become a “former public employee” subject to Section 1103(g) of the Ethics Act. The
former governmental body would be the Department of Health in its entirety, including
but not limited to the Division of Safety Inspection. For the first year following
termination of your employment with the Department of Health, Section 1103(g) of the
Ethics Act would apply and restrict “representation” of a “person” before the Department
of Health. The restrictions as to representation outlined above must be followed.
Section 1103(g) of the Ethics Act would not prohibit you from accepting
employment as a Corporate Safety Officer for a local hospital system (the “Hospital
System”). However, during the first year following termination of your employment as a
Safety Inspection Supervisor for the Department of Health, Section 1103(g) of the
Ethics Act would prohibit you from performing any job duty(ies) that would involve
prohibited representation before the Department of Health as set forth above.
Aubrey, 15-562
November 2, 2015
Page 6
With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a
ruling as to past conduct. You are generally advised that the elements of a violation of
Section 1103(a) of the Ethics Act would not be established as a result of your
prospectively entering into a business/employment relationship with the Hospital
System subject to the conditions that you: (1) did not use the authority of your public
position in matter(s) pertaining to the Hospital System when you had an actual or
reasonable expectation that you would enter into a business/employment arrangement
with the Hospital System or would otherwise receive a private pecuniary benefit relating
to the Hospital System; and (2) did not otherwise use the authority of your public
position or confidential information received as a result of being in your public position in
furtherance of securing a business/employment arrangement with the Hospital System
or other private pecuniary benefit relating to the Hospital System. 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