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HomeMy WebLinkAbout81-556 SmithMichael R. Smith 82 Jefferson Street Hummelstown, PA 17036 RE: Former Public Employee Dear Mr. Smith: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 April 20, 1981 ADVICE OF COUNSEL 81 -556 This responds to your letter of April 3, 1981, in which you requested an opinion from the Ethics Commission. Issue: You requested advice as to whether you may serve as a consultant on the disability provisions of the Social Security Act after you leave your present position, Disability Claims Adjudicator II, with the Commonwealth. Facts: You are now employed by the Commonwealth of Pennsyl- vania as a Disability Claims Adjudicator II. As a Claims Adjudicator you reviewed, developed, and adjudicated disability claims. You collected medical and vocational information, reviewed the documentation, and decided the claim with reference to the applicable regulations of the Social Security Admini- stration. You intend to leave this position in June 1982. After retiring from State service you will become a consultant for other disability specialists, lawyers, insurance companies, unions, public and private corporations. As a consultant you will interview potential clients, analyze the medical and vocational information, and make a written determination as to whether or not the potential client has a valid disability claim. Discussion: The Ethics Act, 65 P.S. §401 et seq. defines, i ertinent part, "public employee" as any individual employed b the Commonwealth who is responsible for taking or recommen- ding official action of a non - ministerial nature where the official action has an economic impact of a greater than de minimus nature on the interests of any person. 65 P.S. §402. You are an employee of the Commonwealth and in your work you make non - ministerial decisions about disability claims. Your decisions have an economic impact of greater than de minimus nature on disability claimants. Thus, you are a "public employee" subject to the Ethics Act. 1\6 s.Jllll l,ll April 22, 1981 Page 2 The Ethics Act does not prohibit you from acting as a consultant after you leave public employment, provided that you observe the following restrictions. Section 3(e) of the Act states that no former public employee shall represent a person, with or without compensation, on any matter before the govern- mental body with which he has been associated for one year after he leaves that body. Accordingly, you may not represent any person before the agency or department in which you now work. Morris, 80 -039; Widoff, 79 -055. More specifically you may not attempt to influence the governmental body with which you are currently associated. Covill- Ringer, 79 -041; Cutt, 79 -023. Should the situation arise, you may not sign evaluations submitted to the govern- mental body with which you are currently associated. Your signature may influence the governmental body. Kilareski, 80 -054. While you may not make yourself known to the govern- mental agency that presently employs you, you may assist in the preparation of evaluations submitted by another. Kilareski, 80 -054. You may not participate in any disability case over which you had supervision, direct involvement, or responsibility while with the governmental body. Morris, 80 -039. Thus, you may not provide consulting services on specific cases in which you had direct involvement, supervision or responsibility while working for the State. You may make general informational inquiries similar to these made by the public. Peffer, 79 -058. You are not barred from using the expertise and knowledge gained as a public employee in your consulting business, except as set forth above. Morris, 80 -039. You may represent any person before a third forum, such as a court or another governmental agency. The prohibition against representation applies for one year only and only to representation before the agency with which you are associated. Morris, 80 -039. You should also be aware that Section 4(a) of the Act requires a former public employee to file a Statement of Financial Interests the year after the former employee leaves State service. 65 P.S. §404(a). Conclusion: As a Disability Claims Adjudicator you are a public employee governed by the Ethics Act. The Act does not prevent you from leaving State employment and working as a private consultant. You may not represent any person before the governmental agency or department with which you were associated for the year ater you leave the agency. You may not appear before your former agency or attempt to influence the agency by signing evaluations and /or other submissions to the agency. You may not consult on any case over which you had direct supervision or involvement while employed by the State. Michael R. Smith April 22, 1981 Page 3 You may assist in the preparation of documents submitted to your former agency. You may make general inquiries of your agency or department. As well, you may utilize the knowledge gained in State employment within the restrictions noted above. You may represent any person in a third forum such as State or federal court or another governmental body. You must file a Financial Interest Statement for the year after you leave State employment. 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. SW /rdp Sincerely, andra S. Ch istianson General Cou sel