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HomeMy WebLinkAbout89-589 SirolliMs. Nancy L. Sirolli 3705 Brian Drive Harrisburg, PA 17110 Dear Ms. Sirolli: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 30, 1989 89 -589 Re: Former Public Employee; Section 3(g); DPW; Division Director of Case Management Program This responds to your letter of October 25, 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 Department of Public Welfare. Facts: You are currently employed by the Department of Public Welfare, hereinafter DPW, as director of the Division of the Case Management Programs in the office of Medical Assistance Programs. You have been with DPW since February of 1972 and have been in your current position since July of 1985. You have recently accepted a position with Wodjack Associates as an Account Manager in their Health Tech Division and you will be responsible for managing accounts of health care providers who retain Wodjack Associates as a consultant /lobbyist. Your new position will require you to interact with State and Federal Government and you will be responsible for educating health care providers on the operation of State and Federal government and educating government entities on the needs of health care providers. You conclude by requesting advice from this Commission as to what activities might be prohibited on your part as well as the time frame for such activities. Discussion: As a Division Director for Case Management Program in DPW, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, Ms. Nancy Sirolli Page 2 indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of employment, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) 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 P.S. S402. Initially, to answer your request the governmental body with which you were associated while working with DPW must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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 P.S. §402 Thus, the governmental body with which you have been associated upon the termination of employment would be DPW. Therefore, within the first year after termination of service with DPW, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW. The Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former Ms. 'Nancy Sirolli Page 3 governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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. In respect to the one year representation the Ethics Law defines "Represent" as follows: Section 2. 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. 65 P.S. §402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. §402. 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 DPW), including, but not limited to, negotiations or renegotiations in general or as to contracts with the DPW; 2. Attempts to influence DPW; Ms. i}ancy Sirolli Page 4 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 DPW 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 DPW 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 DPW 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 DPW, is not prohibited as representation. You may, assist in the preparation of any documents presented to DPW so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to the DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW 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. 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 and 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 Ms.'Nancy Sirolli Page 5 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. Conclusion: As a Division Director for the Case Management Program in the office of Medical Assistance Programs of DPW, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, 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 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. Sincerely, Vr -c.�f l Vincent 3. Dop o Chief Counsel 14)