HomeMy WebLinkAbout17-561 DivelyC
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STATE ETHICS COMMISSION
309 FINANCE BUILDING
RO. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -800- 932 -0936
ADVICE OF COUNSEL
August 22, 2017
To the Requester:
Ms. Alizabeth Dively
17.561
Dear Ms. Dively:
This responds to your letter dated July 26. 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P
a. TS. § 1101 et se%, would impose restrictions upon employment of a Public Health
Program Administrator following termination of employment with the Pennsylvania
Department of Health.
Facts. You request an advisory from the Commission regarding the post -
eempFyment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You are currently employed as a Public Health Program Administrator with the
Pennsylvania Department of Health ( "Department of Health ") in the Bureau of Health
Promotion and Risk Reduction, in which capacity you serve as the Program
Administrator for the Pennsylvania Violent Death Reporting System. You have
submitted copies of your official Commonwealth position description and organization
charts for the Department of Health, which documents are incorporated herein by
reference. A copy of the job classification specifications for the position of Public Health
Program Administrator {lob code 34621) has been obtained and is also incorporated
herein by reference.
You state that although your official Commonwealth position description lists
work related to the Preventive Health and Health Services Block Grant and the Core
Violence and Injury Prevention Program Grant, you are not currently working on those
projects. You further state that for at least the past year, your work duties and
responsibilities have been focused solely on the Pennsylvania Violent Death Reporting
System.
You are investigating options for private sector employment. You seek guidance
as to whether the Ethics Act would impose any prohibitions or restrictions upon you
during the first year following termination of your employment with the Department of
Health. In particular, you ask whether you would be permitted to work as a business
analyst for a company that is a subcontractor to a prime company providing services to
the Pennsylvania Department of Human Services.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester
FAX: (717) 787 -0806 0 Web Site: www.ethics.statex)a.us a e-mail: ethics@state.pa.us
Divel 17 -561
August 22, 2(317
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based upon the facts that the requester has submitted. In issuing the advisory based
upon the facts that the requester has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts that have not
been submitted. It is the burden of the requester to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a
defense to the extent the requester has truthfully disclosed all of the material facts.
As a Public Health Program Administrator for the Department of Health, you
would be considered a "public employee" subject to the Ethics Act and the Regulations
of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This
conclusion is based upon the position description and the job classification
specifications, which when reviewed on an objective basis, indicate clearly that the
power exists to take or recommend official action of a non -- ministerial nature with
respect to one or more of the following: contracting; procurement, administering or
monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating;
auditing; or other activity(ies) where the economic impact is greater than de minimis on
the interests of another person.
Consequently, upon termination of your employment with the Department of
Health, you would become a "former public employee" subject to Section 1103(g) of the
Ethics Act.
While Section 1103(8) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public off iciallpublic
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a er�son, 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 Pa.C.S. § 1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. 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.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"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
DivelV, 17 -561
August 22, 2017
Page 3
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 Pa.C.S. § 1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officiaT7p`u_b ii c employee himself,
Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur,
pinion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in awn activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official/public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public employee on invoices submitted by his new employer to the former governmental
body, even if the invoices pertain to a contract that existed prior to termination of service
with such governmental body. Sha , Opinion 91 -012. However, if such a pre - existing
contract does not involve the unit where a former public employee worked, the name of
the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. AbramsNVebster,
Opinion 95 -011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official /public employee may also counsel any
person regarding that person's appearance before his former governmental body. Once
again, however, the activity in this respect should not be revealed to the former
governmental body. The Ethics Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Section 1103 (8) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
officiallpublic employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official/public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official/public emoyee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; S[[g , Opinion 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be deemed to have been
associated upon termination of your employment with the Department of Health would
be the Department of Health in its entirety, including but not limited to the Bureau of
Health Promotion and Risk Reduction. Therefore, for the first year following termination
of your employment with the Department of Health, Section 1103(g) of the Ethics Act
would apply and restrict "representation" of a "person" before the Department of Health.
Divy l , 17 -561
August 22, 2017
Page 4
You are advised that Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment as a business analyst for a company that is a subcontractor
to a prime company providing services to the Pennsylvania Department of Human
Services. However, during the first year following termination of your employment with
the Department of Health, Section 1103(g) of the Ethics Act would prohibit you from
performing any job duty(ies) that would involve prohibited representation before the
Department of Health as delineated above.
Based upon the facts that have been submitted, this Advice has addressed the
applicability of Section 1103(g) only. It is expressly assumed that there has been no
use of authority of office or employment, or confidential information received by being in
the public position, for a private pecuniary benefit as prohibited by Section 1103(a) of
the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics
Act provide in part that no person shall offer or give to a pubic official /public employee
and no public officiallpublic employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
officiallpublic employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other 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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As a Public Health Program Administrator for the Pennsylvania
Department of Health ( "Department of Health "), you would be considered a 'public
employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65
Pa.C.S. § 1101 et seg., and the Regulations of the State Ethics Commission, 51 Pa.
Code § 11.1 et se q. Upon termination of your employment with the Department of
Health, you would-Fecome a "former public employee' subject to Section 1103(8) of the
Ethics Act. The former governmental body would be the Department of Health in its
entirety, including but not limited to the Bureau of Health Promotion and Risk Reduction.
For the first year following termination of your employment with the Department of
Health, Section 1103(g) of the Ethics Act would apply and restrict "representation" of a
"person" before the Department of Health. The restrictions as to representation outlined
above must be followed. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actue
received at the Commission within thirfy (30) days of the date o
Advice pursuant to 51 Pa. Code § �3.2(h). The appeal may be
Diive�ll, 17 -561
August 22, 2017
Page 5
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717-787-0806). Failure to
file such an appeal at the Commission within thirty (0) days may
result in the dismissal of the appeal.
Since ely,
X��- M �4�
Robin M. Hittie
Chief Counsel