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HomeMy WebLinkAbout84-595 DeBrunnerMr. Charles L. DeBrunner 4104 Green Court Harrisburg, PA 17110 Dear Mr. DeBrunner: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 20, 1984 ADVICE OF COUNSEL 84 -595 RE: Former Public Employee; Section 3(e), Department of Public Welfare This responds to your letter of July 10, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask what restrictions you would face upon your termination of employment with the Department of Public Welfare (DPW) and your acceptance of employment as an Assistant Vice- President in a corporation. Facts: You indicate that you have recently accepted a position as Assistant Vice - President for hospital services with the Hospital Association of Pennsylvania (HAP). You indicate that your job with HAP will involve policy analysis and communication of that analysis to member hospitals. While you were employed by DPW you were classified as a Medical Assistance Program Specialist III. You have provided us with the job description and an organization chart relating to your service in this capacity. In this capacity, you were supervisor of the Program Analysis Section within the Division of Program Development. However, in November, 1983, you were named acting Division Chief with respect to the Division of Program Development and you have been receiving out -of -class pay as a Welfare Program Executive I. You have provided us with the job description for a Welfare Program Executive I which is incorporated herein by reference. Several items on this job description (Welfare Program Executive I) should by emphasized, however. One of these items is that as Acting Director of the Division of Program Development, hereinafter, the Division you are also responsible for chairing the Management Reporting Subsystem (MRS) sub - committee of the Medical Assistance Finance Committee and you were required to serve as representative of the Office of Medical Assistance on the DPW Data Utilization Review Committee and two of its sub - committees. Mr. Charles L. DeBrunner July 20, 1984 Page 2 Discussion: In your capacity as acting Director of the Division and your capacity as supervisor of the Program Analysis Section, hereinafter the Section, you were to be considered a "public employee" as that term is defined in the State Ethics Act and the regulations of the Commission. See Section 2 of the State Ethics Act, 65 P.S. 402 and 51 Pa. Code 1.1. This conclusion is based on your job description which indicates that while you were in these positions you had the power to take or recommend official action of a nonministerial nature with respect to several of the categories listed in the definition of "public employee" as set forth in the Ethics Act. Consequently, upon termination of your state employment, you became a "former public employee" subject to the provisions of Section 3(e) of the Ethics Act which provide as follows: 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 we must identify the "governmental body" with which you were "associated" while working with DPW. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". 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 employment extends. to those entities where he had influence, responsibility, supervision, or control. In addition, the Commission has indicated that an individual may have been associated with more than one "governmental body ". Sonnenschein, 80 -534. Finally, the Commission has also indicated that where an individual serves as an ex officio member by virtue of his position or classification on another body, he should be deemed to be "associated with" those entities on which he serves in such a capacity. See Seltzer, 80 -044. Applying these concepts to your situation then, we must conclude that you were associated with the Division in which you served as Acting Director from November, 1983. Therefore, the restrictions that you would face upon your activity vis -a -vis the Division would be applicable for the one year period following your termination of service with the Division. Likewise, in your capacity as Acting Division Chief you were also empowered to and did sit in an ex officio capacity on several Committees. Accordingly, you must be deemed to be "associated" with these Committees, hereinafter, referred to generally as the Committees. These "Committees" include: the MRS Sub - Committee of the Mr. Charles L. DeBrunner July 20, 1984 Page 3 Medical Assistance Finance Committee and the Data Utilization Review Committee and its two sub - committees as identified on your job description as Acting Director of the Division. Therefore, the one year restriction outlined in Section 3(e) applies to your "representation" of persons or new employers before the Division, including the Program Analysis Section, and the Committees as outlined above. It should be noted that the Ethics Act does not generally affect your ability to appear before agencies, departments, or entities other than the Division, the Section, or these Committees. Likewise, there is no general restriction against your seeking and securing employment following your termination of employment with DPW. You may not, however, represent any new employer before the Division, the Section, or these Committees as described more fully below for the first year after leaving DPW. The Ethics Commission has promulgated regulations to define the term "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 employe. 51 Pa. Code 1.1. The Commission, in its opinion, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental bodies with which you have been deemed to have been associated, that is the Division, the Section, and these Committees including but not limited to negotiations or renegotiations on contracts with these entities; 2. Attempts to influence these entities; 3. Participating in any matters before these entities on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by DPW; 4. Lobbying, that is representing the interests of any person or employer before these entities in relation to legislation, regulations, etc. See Russell, 80 -048; Seltzer, 80 -044. Mr. Charles L. DeBrunner July 20, 1984 Page 4 In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the Division, the Section or these Committees, has been held to constitute an attempt to influence these former governmental bodies. See Kilareski, 80 -054. Therefore, within the first year after you would leave DPW, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance with respect to these documents, proposals, bids, etc., which will be presented to the Division, the Section, or these Comittees or reviewed by these entities. You may, even given the above restrictions, assist in the preparation of any documents presented to the Bureau or the Division and assist in the preparation associated with appearances to be made by a person other than yourself before the Division, the Section or these Committees so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Division, the Section, or these Committees to secure information which is available to the general public. See Cutt, 79 -023. Likewise, the Commission has concluded that if you are administering an existing contract, as opposed to negotiating or renegotiating contract, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involved dealing with personnel of the Division or the Section or these Committees or personnel within any of these entities. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: In your capacity as Acting Division Chief (Welfare Program Executive I) and in your capacity as supervisor of the Program Analysis Section (as a Medical Assistance Program Specialist III) you were to be considered a "public employee" as defined in the State Ethics Act. Upon your termination of service with DPW, therefore, you became a "former public employee" subject to the restrictions imposed in Section 3(e) of the Ethics Act. Accordingly, your conduct should conform to the requirements of the State Ethics Act as outlined above. Further, should you terminate your employment with DPW, you are reminded that the Ethics Act also requires that as a public employee you must file a Statement of Financial Interests for each year in which you hold the position described above, and for the year following your termination of service with the State. Thus, in addition to the Statement of Finanical Interests which you have probably already filed as of May 1, 1984, a Statement should be filed no later than May 1, 1985. This Statement represents the filing required for the year following your termination of service with DPW and will record information for the calendar year 1984. Mr. Charles L. DeBrunner July 20, 1984 Page 5 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /na This letter is a public record and will be made available as such. Sin rely, mov-iotYV./(i Sandra S. Christianson General Counsel cc: Walter W. Cohen, Secretary, Public Welfare John Lylo, Director, Personnel, Public Welfare