HomeMy WebLinkAbout81-590 GordonJoan S. Gordon
5401 Mohawk Drive
Bethlehem, PA 18017
Dear Mrs. Gordon:
RE: Restrictions, Representation
STATE ETHICS COMMISSION
308 FINANCE_ BUILDING
HARRISBURG, PENNSYLVANIA 17120
July 13, 1981
ADVICE OF COUNSEL
81 -590
This responds to your communication of July 2, 1981.
Issue: In that communication you requested advice from the
State Ethics Commission regarding your duties and responsi-
bilities as a "former public employee" under the Ethics Act.
Facts: You indicate that you have been furloughed by the
Department of Health due to a cut -back in funds effective
June 30, 1981. You are applying for a position as an
assistant administrator of a skilled nursing facility.
While employed by the Department of Health you worked
in the Division of Long Term Care as a Health Facility
Quality Examiner I. Your job was to inspect skilled nursing
facilities, intermediate care facilities and institutions
for the mentally retarded. You made recommendations for
licensure relating to these facilities and you also made
recommendations regarding their participation in the
Medicare /Medicaid Programs.
Discussion: The State Ethics Act defines a "public employee"
as any individual employed by the Commonwealth who is
responsible for taking or recommending official action of a
non - ministerial nature with regard to inspecting, licensing
and regulating or auditing any person, among other things.
These criteria are directly applicable to your situation as
a Health Facility Quality Examiner as described above.
Accordingly, we conclude that you are a "public employee"
within the meaning of the Ethics Act.
Joan S. Gordon
July 13, 1981
Page 2
As -a "public employee" within the coverage of the
Ethics Act, your conduct upon terminating your service with
the Commonwealth must conform to the requirements of the
Ethics Act. These requirements include complying with the
provisions of Section 3(e) of the Ethics Act, 65 P.S.
403(e). Section 3(e) provides that:
"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(e).
The Commission has determined that the concept of the
"governmental body" with which an individual has been
associated is that entity with which he or she may have
exerted "influence." In your case, your job description
appears to limit your responsibilities and therefore, your
"influence ", to the Division of Long Term Care within the
Department of Health. Accordingly, you may not represent
any person with or without compensation before the Division
of Long Term Care for the one -year period following your
termination of service with the Commonwealth.
The term "representation" has also been further inter-
preted by opinions of the Commission. Specifically, this
term has been held to preclude for the one -year period the
following activities:
1. Personally appearing before the governmental body
with which you were associated, including but not
limited to negotiations on contracts;
2. Attempting to influence that body;
3. Participating in any manner in a specific case,
matter or contract over which you had supervision,
direct involvement or responsibility while employed
with the governmental body;
4. Lobbying, that is representing the interests of
any person before that governmental body as to
legislation, regulations, etc. See Morris, 80-
039 and Russell, 80 -048;
Joan S. Gordon
July 13, 1981
Page 3
5. Signing and submitting under your.own signature
proposals, contracts, or other items to the
Division of Long Term Care;
6. Including your name on a bid proposal as an
individual who would be involved in administering
any contract to provide technical assistance which,
is subject to the proposal. See Dalton, 80 -056
and Kilareski, 80 -054.
While these restrictions must be imposed you may,
however, engage in the following activities:
1. You may administer, rather than negotiate, any
contract that is to be awarded to any future
employer or client by the Department of Health or
the Division of Long Term Care so long as that
contract is awarded without your name being
included as noted in items 5 and 6 above.
2. You may make general informational inquiries of
the Department of Health or the Division of Long
Term Care within that Department so long as no
attempt is made to influence the Division of Long
Term Care as noted above.
3. You may utilize the knowledge and expertise gained
during your tenure as a public employee except as
set forth above.
4. You may appear and represent any person on behalf
of a new employer before any governmental agency
other than the Division of Long Term Care.
Conclusion: As a former public employee your conduct should
be guided by this Advice. The prohibitions and the activities
allowable are noted above and should be met.
In addition, as a former public employee you are required
to file a Financial Interest Statement for each year that
you hold office and the year following your termination of
service. Accordingly, such a Financial Interest Statement
should be filed no later than May 1, 1982.
Joan S. Gordon
July 13, 1981
Page 4
Pursuant to Section 7(9)(ii), this Advice is a complete
defense any enforcement proceeding '_vitiated 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
cc: Arnold H. Muller, Secretary
Department of Health
Sin . -rely,
4 40,.
ra S. Chr tianson
General Cou el