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HomeMy WebLinkAbout17-569 ParsonsSTATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1 -800- 932 -0936 ADVICE OF COUNSEL October 18, 2017 To the Requester: Ms. Ashley Parsons Dear Ms. Parsons: 17 -569 This responds to your letters dated August 9, 2017, and August 25, 2017, by which you re guested an advisory from the Pennsylvania State Ethics Commission ( "Commission'). Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 a. .S. § 1101 et se q., would impose restrictions upon employment of an Executive Policy Specialist ollowing termination of employment with the Pennsylvania Department of Health. Facts: You request an advisory from the Commission regarding the post - empi yment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. At the time that you submitted your inquiry, you were employed as an Executive Policy Specialist 2 with the Pennsylvania Department of Health ( "Department of Health" ). You have submitted copies of your official Commonwealth position description and the job classification specifications for the position of Executive Policy Specialist 2 (job code 16820), both of which documents are incorporated herein by reference. It is noted that said position description lists your working title as Health Innovation Analyst. You stated that the aforesaid position description and job classification specifications are not reflective of your function at the Department of Health. You stated that although your position was titled "Executive Policy Specialist 2," you did not function as a member of the Department of Health's policy team or have any involvement in the operations or decisions of the Department of Health Policy Office. You stated that your role was primarilyy programmatic in nature and that your functions included, inter alia: (1) managing day -to -day programmatic needs for the Department of Health's work orce reports and surveys, including writing surveys for six health professional licensure cycles, collecting data, preparing public reports, and convening stakeholders, (2) managing and supervising temporary support staff for the workforce reports and surveys program, (3) assisting in preparing budget information for program sustainability and expansion; and (4) managing and administering Prescription Drug Monitoring Program (PMDP) State Master Agreements by writing contracts, negotiating FAX: (717) 787 -0806 Web Site: www.ethics.state.Da.us 0 e -mail: ethics state. a.us Parsons, 17 -569 acFooGer 18, 2017 Page 2 statements of work, reviewing budgets, administering contracts, and monitoring contractual work. You stated that you would be leaving your Commonwealth employment effective August 31, 2017, and that you would begin serving as a Community Health Director for the Great Rivers Affiliate of the American Heart Association as of September 5, 2017. You stated that your position as a Community Health Director would not involve any form of lobbying or aspects of government relations. You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon you during the first year following termination of your employment with the Department of Health. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(l 1) of e Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester 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 tha# 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 an Executive Policy Specialist 2 with a working title of "Health Innovation Analyst" 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. 5 1102; 51 Pa. Cade § 11.1. This conclusion is based upon the submitted facts, 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(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public 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 bodv 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: Parsons, 17 -569 cl—er 18, 2017 Page 3 § 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 ich within State government or a political subdivision by whthe public official or employee is or has 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 official p1pu 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. Pop ovich, 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. Shay, 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 95011. 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 Parsons, 17 -569 ZTcTo_5er 18, 2017 Page 4 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 () only restricts the former public official /public employee with reggard to representa�lon before his former governmental body. The former public official /public 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 employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 900 harp, 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. 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. In particular, 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 engaging in any activity(ies) in your position as a Community Health Director for the Great Rivers Affiliate of the American Heart Association that would involve prohibited representation before the Department of Health as set forth 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 bein 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 public official /pu lic employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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 an Executive Policy Specialist 2 with a working title of "Health Innovation Analyst" for the Pennsylvania Department of Health `Department of Health "), you would be considered a ' ppublic employee" subject to the Public Official and Employee Ethics Act ("Ethics Act "), Pa.C.S. § 1101 et se q., and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et sew. 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. The former governmental body would be the Department of Health in its entirety. 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. Parsons, 17 -569 c� 18, 2017 Page 5 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 writingg and must be actual) received at the Commission within thirty (30) days of the date of this Advice -pursuant to 51 Pa. Code § 13.2(h). The appeal may be 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 (30) days may result in the dismissal of the appeal. Sin" ly, r i Xl,bin M. ittie Chief Counsel