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HomeMy WebLinkAbout83-533 LippincottDale H. Lippincott, CPA 1028 Smethwyck Place Bensalem, PA 19020 RE: Representation; Restriction; CPA Dear Mr. Lippincott: Malhng Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: 1717) 783 -1610 April 11, 1983 ADVICE OF COUNSEL 83 -533 This responds to your letter of February 21, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask what restrictions the Ethics Act imposes upon you as a former employee with the Department of Public Welfare. Facts: You inform us that you were employed by the Commonwealth of Pennsylvania, Department of the Auditor General, Bureau of Special Audits, from January, 1972 through November 1978. In December, 1978, you became a civil service employee, employed by the Pennsylvania Department of Public Welfare, Office of M'dical Assistance, Bureau of Reimbursement Methods, Division of Nursing Home Audits as a Field Auditor III (FA III) until April 29, 1982, when you retired with approximately ten years of government service. Your last job description indicates that you had substantial responsibility in planning, developing and implementing audit review practices and routines. You also participated in special projects such as developing and updating an audit manual to include procedures, techniques and generally accepted accounting principles. You were also responsible for interpreting federal and state regulations in reporting requirements, and you participated in on -site audit reviews in participating nursing homes. You also participated in other discretionary duties such as reviewing field audit reports for completeness and developing manual processes and programs adaptable to computerization. As a certified public accountant you are concerned with what restrictions the Ethics Act places upon your participation in the administrative appeals process and you have, therefore, requested an opinion from the State Ethics Commission. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Dale H. Lippincott, CPA April 11, 1983 Page 2 Discussion: In your position as a Field Auditor III, you were a public employee within the meaning of the State Ethics Act. See 65 P.S. §401 et. seq. As a former public employee, your conduct is regulated by Section 3(e) of the Act, which provides: (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 yeap after he leaves that body. 65 P.S. 403(e). In previous opinions, the Commission has held that the scope of an employee's governmental body is that body with which the formal public employee was capable of a certain influence or the body to which he made recommendations. See Ewing, 79 -010; Alexander, 82 -506. In your case, the governmental body with which you were associated is the Division of Nursing Home Audits (hereinafter the Division) of the Department of Public Welfare. Thus, you may not represent a person before the Division or before its personnel for a period of one year from April 29, 1982, the date you terminated your employment with the Commonwealth. Notably, this one -year period will soon expire, but we give our response nevertheless. The Commission has interpreted the term "representation" to preclude for the one -year period, relative to the governmental body with which you were associated, the following activities: 1. personally appearing before the Division of Nursing Home Audits, including but not limited to the appeals process; 2. attempting to influence the Division or its personnel; 3. participating within this one -year period in any manner over a specific case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by the Commonwealth. This prohibition relates to the Division only; it does not preclude your participation on matters over which you had specific responsibility so long as that participation does not include representation as enunciated herein before the Division. 4. lobbying, that is, representing the interest of any person before the Division for the one -year period as to legislation, regulations etc. Morris, 80 -039; Russell, 80 -048. 5. signing and submitting under your own name correspondence, proposals, appeals, or other items to the Division. Dale H. Lippincott, CPA April 11, 1983 Page 3 6. including your name on any type of proposal submitted to the Division as the individual who would be involved in administering any contract or providing any technical service on any contract which is the subject of the proposal. Dalton, 80 -056; Kilareski, 80 -034. While these restrictions apply to you for the one -year period following your termination of service with the Commonwealth relative to the Division, you may, nevertheless, engage in -the following activities even within the one -year period: 1. administer, rather than negotiate or re- negotiate, any contract or proposal that exists or is to be awarded to your future employer as long as the contract is awarded without your name being included as noted above in Items 5 and 6. 2. make general informational inquiries of the Division as long as no attempt is being made to influence the Division as prohibited above. 3. utilize the knowledge and expertise gained during your tenure as a public employee relating to clients or other employers except as outlined above. 4. appear and represent any person on behalf of any client or new employer before any governmental body other than the Division. As you recognize in your request, and as discussed above, whether or not you are personally precluded from representing a client before the Division, that restriction is personal to you and does not extend to the members of your firm. Morris, - . Your client may, therefore, receive the benefit of your expertise h e h you are able to represent him before the agency or not. Conclusion: Upon your termination of service with the Commonwealth, and specifically with the Division of Nursing Home Audits, you became a former public employee subject to the restrictions as delineated by the Ethics Act. Your conduct should be guided by this advice, and you should take note of both the prohibited and the allowable activities as noted above. Additionally, as a former public employee, you must file a Financial Interest Statement for each year that you held office and for the year following your termination of service. Thus, a Statement of Financial Interest should be filed no later than May 1, 1983, which represents the filing required for the year following your termination of service. A form is enclosed for your use. Dale H. Lippincott, CPA April 11, 1983 Page 4 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 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. CW /rdp Enclosure cc: Brian Baxter, Acting Secretary 333 Health & Welfare Bldg. Department of Public Welfare Sincerely, Sandra S. Ch stianson General Counsel