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HomeMy WebLinkAbout89-575 SebastianDear Mr. Sebastian: STATE ETHICS COMMISSION 308 FINANCE BUILDING PO, BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 Mr. Richard A. Sebastian, Chief Division of Consumer Education 6400 Colchester Avenue Harrisburg, PA 17111 ADVICE OF COUNSEL October 16, 1989 89 -575 Re: Former Public Employee; Section 3(g); Insurance Department; Chief of Consumer Education This responds to your letter of September 19, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Pennsylvania Insurance Department. Facts: You seek advice from the State Ethics Commission regarding your current employment in the Pennsylvania Insurance Department and the potential impact of such public service upon future employment. You have been employed by the Insurance Department, Division of Consumer Education since October of 1988 wherein you have responsibilities to develop the program of educating the public, agents and the industry regarding various aspects of insurance such as rights, responsibilities, and remedies available to consumers. You also develop lesson plans for senior citizens explaining long term care, Medicare and Medicaid benefits as well as providing assistance to these consumers so they may be better informed and aware of their medical protection. You were director of Consumer Services managing four regional offices prior to being appointed as Chief of Consumer Education. You are contemplating employment in the private sector and are particularly interested in working with the Nationwide Mutual Insurance Company. You anticipate that your position would involve government relations, that is, communication and advocacy before the General Assembly. You seek to ascertain what limitations would be imposed upon you due to your current employment. In particular you inquire as to Mr. Richard A. Sebastian Page 4 club or other organization or group of persons. 65 P.S. 5402. The Commission, in Popovich,, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is the Department), including, but not limited to, negotiations or renegotiations in general or as to contracts with the Department; 2. Attempts to influence the Department; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee. 4. Participating in any matters before the Department over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before the Department in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Department constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Department, is not prohibited as representation. You may, assist in the preparation of any documents presented to the Department so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department. Once again, however, the activity in this respect should not be revealed to the Department. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Department to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Mr. Richard A. Sebastian Page 5 Finally, the Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 in this advice is the Governor's Code of Conduct or the State Adverse Interest Act. Conclusion: As a Chief of Consumer Education, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with Pennsylvania Department of Insurance, you would become a "former public employee" subject to the restrictions imposed by Section 3(g) of the Ethics Law. As such, your conduct should conform to the requirements of the Ethics Law as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following 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 Mr. Richard A. Sebastian Page 6 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 §2.12. VJD /emg Sincerely, Vincent Dopko, Chief Counsel