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HomeMy WebLinkAbout81-504 MonaghanThomas J. Monaghan Room 113 Finance Building Harrisburg, PA, 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 January 13, 1981 ADVICE OF COUNSEL 81 -504 RE: Section 3(e), Restrictions Dear Mr. Monaghan: This responds to your communication of January 9, 1981. Issue: In your communication you requested advice from the Ethics Commission as to the impact of the Ethics Act upon you as a former public employee. Facts: You have been an employee of the State Treasury Department since March 26, 1979. You began your employment as Co- Director of the Bureau of Public Assistance as of that date. In September, 1979 you became Director of the Bureau. In these capacities your duties included performing all necessary treasury operations, but more specifically you have been required to work with and furnish information to the Welfare Department, Revenue Department, and Justice Department in particular. Your principle duties in regard to contact with the Welfare Department have been concerning public assistance payments. You have resigned your position as of January 23, 1981. You intend to retire from State employment as of that date. You have accepted a position as an Assistant Treasurer with the Leader Nursing Centers, Inc. as of January 26, 1981. Your role, as Assistant Treasurer, with the Leader Nursing Centers, Inc. will include performing the following functions: Thomas J. Monaghan January 13, 1981 Page 2 1. Expediting the receipt and prompt deposit of monthly medical assistance payments made to residents of Leader Nursing Centers, Inc. from the Department of Public Welfare; 2. Personally contacting officials of the Department of Public Welfare and other State agencies in order to accomplish Objective Number 1 above and to clarify matters relating to medical assistance, audits, and reimbursements. You indicate that you will not contact the State Treasury in regard to these matters until such time as such contact would be permitted by the State Ethics Code. 3. Making contact with members of the General Assembly to enlist their support for legislation affecting the Health Care Industry in general, and if appropriate the Leader Nursing Centers, Inc., in , particular. Discussion: The State Ethics Act in Section 3(e), 65 P.S. 403(e) precludes a former public employee from appearing and representing any person before the governmental body with which he was associated for a period of one year after he leaves that body. The Commission has, on several occasions, made rulings as to the definitions of the terms "governmental body ", "associated with ", and "representation." Basically, the decisions of the Commission indicate that an individual's "govenmental body" should be defined as that entity over which the former employee or public official had or could have had authority or influence. See Kline, 79 -001. The Commission had determined that the prohibition may extend to a whole department, where the individual involved work in or with a whole department to the extent that he could be said to have "influence" over the entire Department. See Cutt, 79 -023. In your case, as Director of the Bureau of Public Assistance, it is reasonable to assume that you had some influence of the entire Treasury Department. At your level of employment, which should be deemed to be a fairly high one, the Commission concludes that your "governmental body" would be the entire State Treasury Department. Having decided that the State Treasury Department, as a whole, constitutes the "governmental body" with which you had been associated you should be advised that the decisions of the Commonwealth have also addressed the question of what constitutes "representation." In relation to the State Treasury Department you may not engage in "representing" any person before the State Treasury Department. The deci- sions of the Commission indicate in general, what is considered "representing." In particular, the decision rendered in Morris, 80 -039 indicates that: Thomas J. Monaghan January 13, 1981 Page 2 1. Personal appearance before the governmental body is prohibited for the one -year period; 2. Attempts to influence the governmental body are prohibited for the one -year period; 3. The former public employee may not participate in any case over which he or she had supervision, direct involvement, or responsibility while associated with the governmental body; 4. Members of the former public employee's firm or business or prospective employer are not barred from representing clients before the governmental body with which the former public employee was associated; 5. General informational inquiries on matters which are subject to question by the general public are not prohibited, even as the governmental body named above; 6. Former public employees are not barred from generally utilizing the knowledge and expertise gained from their tenure as public employees except as set forth above; 7. Apppearance in a third forum, such as state or federal court, is not prohibited. In your circumstances, as you indicate, you should not "represent" any person, as described above, before the State Treasury Department for a period of one -year after you leave that Department. Your activities in relation to that Depart- ment should not include items number 1, 2, or 3 above for the one -year period following your termination of employment. There is no prohibition against you contacting other depart- ments, agencies or the General Assembly. Incidently, one final note as to your obligations under the Ethics Act should be made. Section 4(a) requires you to file a Statement of Financial Interest for each year you are employed by a governmental body and by May 1 of the year after you leave public employment. Accordingly, you should file a Financial Interest Statement as a former employee no later than May 1, 1981 for the year 1980 and a statement no later than May 1, 1982 for the calendar year 1981. Thomas J. Monaghan January 13, 1981 Page 4 Conclusion: The governmental body with which your were associated is the State Treasury Department. As to this governmental body, you are prohibited from "representing any person" before that department for a period of one year from the date you leave that department's employment. The term representation, which is prohibited is as set forth in items number 1, 2, and 3 above. In addition, you should file a Financial Interest Statement as a former public employee as set forth above. Two forms are attached for your use. Follow the instructions on this form as to the method of filing. 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sin erely, ndra S. C tianson General Co • =e1