Loading...
HomeMy WebLinkAbout89-558 VanderlinPennie Vanderlin 1522 West Fourth Street Williamsport, PA 17701 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 15, 1989 89 -558 Re: Former Public Employee; Section 3(e), Public Health Program Representative II, Department of Health Dear Ms. Vanderlin: This responds to your letter of May 26, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Department of Health. Facts: You state that you resigned for the PA Department of Health on April 24, 1989. After noting that you worked for the Division of Community Health wherein you co- authored an AIDS Teaching Guide entitled Wellbee, you indicated that the document will be evaluated this fall through a contract with RISE. You then advise that the teacher training which will accompany this evaluation was scheduled to be presented by your co- author and yourself but you would like to know if this is appropriate. You state that the division that would be coordinating this evaluation is the Central Office AIDS, Division of Health Promotion within the Department. You conclude by requesting advice as to whether the above would be appropriate under the Ethics Act. From your job description which is incorporated herein the reference, it appears that your duties and responsibilities as a Public Health Program Health Representative II maybe summarized as follows: to provide professional, advisory, technical, educational, managerial and supportive services for the prevention and control of sexually transmitted diseases (STD); to provide STD epidemiologic service to all public and private health care providers in a 12 county area relating to the diagnoses of patients with STD's followed by counseling and interviews in order to obtain information leading to disease prevention and control; to document and analyze all epidemiologic investigation utilizing federal and state forms; to Pennie Vanderlin June 15, 1989 Page 2 establish and manage an active disease surveillance system in the twelve county area to ensure that STD's are reported and outbreaks are investigated; to manage the district STD program which delivers service to the public and performs such other and responsibilities as are necessary in the position. Discussion: As a Public Health Program Representative for the PA Department of Health, it will be assumed for purposes of this advice that you are a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403. Initially, to answer your request the "governmental body" with which you were associated while working the Department of Health must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewina, Opinion 79 -010. See also Kure v. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been Bureau of Community Health, hereinafter Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau. Therefore, within the first year after you would leave Department of Health, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a - vis Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Pennie Vanderlin June 15, 1989 Page 3 Bureau. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from Department of Health. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1 Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employee. 51 Pa. Code 51.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by Department of Health; 4. Lobbying, that is representing the interests of any person or employer before the Bureau in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. Pennie Vanderlin June 15, 1989 Page 4 The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Bureau, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave Department of Health, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Bureau, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau to secure information which is available to the general public. See Cutt, Opinion 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Bureau your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, Advice 81 -538. Since it appears that your governmental body is the Bureau, it would appear that Section 3(e) of the Ethics Act would not preclude you regarding the evaluation of the AIDS Teaching Guide, entitled Wellbee before the Division of Health Promotion which does not appear to be your current governmental body based upon the above analysis. Additionally, it is noted that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. 5403(b). 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 Pennie Vanderlin June 15, 1989 Page 5 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As a Public Health Program Representative II, it is assumed for purposes of this advice you are a "public employee" under the Ethics Act. Upon termination of your service with Department of Health, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Bureau. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. ncerely, .,(31Jf 04) Vincent. Dopko, General Counsel