HomeMy WebLinkAbout17-570 Williams�.
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -14703
(717) 783 -1610
1 -800- 932 -01936
ADVICE OF COUNSEL
October 18, 2017
To the Requester:
Mr. Tyrone E. Williams
T; TiITi11ATiMltL,TIm
17 -570
This responds to your letters received August 23, 2017, and August 29, 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
7-a -G-8. § 1101 et se q., would impose restrictions upon employment of a Welfare
Program Executive I following termination of employment with the Pennsylvania
Department of Human Services.
Facts: You request an advisory from the Commission regarding the post -
employment restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You state that you recently left our employment as a Welfare Program
Executive 1 with the Pennsylvania Department of Human Services ( "Department of
Human Services "), in which ca acity you served as a Director of a Division in the
Bureau of Managed Care Operations within the Office of Medical Assistance Programs.
You have submitted a copy of a position description (the "Position Description ") for the
Position of Welfare Program Executive 1, which document is incorporated herein by
reference. A copy of the job classification specifications for the position of Welfare
Program Executive 1 (job code 49880) has been obtained and is also incorporated
herein by reference.
You are considering employment with Centene Corporation, which has a contract
with the Department of Human Services to provide healthcare to seniors and the
disabled under the Community HealthChoices program ( "CHC "). CHC provides
coverage for participants who are eligible for both Medicare and Medicaid. CHC
Managed Care Organizations ( "MCOs') have to coordinate closely with Medicare in
order to ensure that CHC participants have access to comprehensive services, and
CHC MCOs have the ability to provide Medicare coverage to CHC participants who
would like to have their Medicare and Medicaid services coordinated by the same entity.
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
FAX: (717) 787 -0806 0 Web Site, www.ethics.state.pa.us 0 e-mail: ethics(a)state.pa,us
Williams 17 -570
ctol5e_r 18, 2017
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the Department of Human Services. In particular, you ask whether you would be
permitted to accept employment with Centene Corporation.
Discussion: It is initial) noted that pursuant to Sections 1107(10) and 1107(l 1) of
e Ethics Act, 65 Pa.C.S. y§§ 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 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.
In the former capacity as a Welfare Program Executive 1 for the Department of
Human Services, 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 Postion 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
Human Services, you became 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:
§ 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.
Williams, 17 -570
c��er 18, 2017
Page 3
"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
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 officiaNp_ub ic-employee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
Opinion 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 ggovernmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89005.
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. _Shama , 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 (g) only restricts the former public official/public employee with
o and to representation 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
Williams, 17 -570
ct� offer 18, 2017
Page 4
control but extends to the entire body. See, Legislative Journal of House, 1989
rolli
Session, No. 15 at 290, 291; Si, Opinion OJT -006; Sharp, opinion 90-009-R.
The governmental body with which you are deemed to have been associated
upon termination of your employment with the Department of Human Services is the
Department of Human Services in its entirety. Therefore, for the first year following
termination of your employment with the Department of Human Services, Section
1103(g) of the Ethics Act would apply and restrict "representation" of a "person" before
the Department of Human Services.
You are advised that Section 1'103() of the Ethics Act would not prohibit you
from accepting employment with Centene Corporation. However, during the first year
followin termination of your employment with the Department of Human Services,
Section-1 103(8) of the Ethics Act would prohibit you from performing any job duty(ies)
that would involve prohibited representation before the Department of Human Services
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 I 103(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: In the former capacity as a Welfare Program Executive 1 for the
Pennsylvania Department of Human Services ( "Department of Human Services "), you
would be considered a "public empplo ee" subject to the Public Official and Employee
Ethics Act "Ethics Act"), 65 Pa.C.S. '1'101 et se q., and the Regulations of the State
Ethics Commission 51 )Pa. Code 1 1 et se . pon terminations of our employment
with the Department of Human �ervices, you became a "former public employee"
subject to Section 1103(g) of the Ethics Act. The former governmental body is the
Department of Human Services in its entirety. For the first year following termination of
your employment with the Department of Human Services, Section 1103(8) of the
Ethics Act would apply and restrict "representation" of a "person" before the Department
of Human Services. The restrictions as to representation outlined above must be
followed.
Section 1103 (8) of the Ethics Act would not prohibit you from accepting
employment with Centene Corporation. However, during the first year following
termination of your employment with the Department of Numan Services, 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 Human Services as
delineated above. Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act.
Williams, 17 -570
cl —er 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 (30j 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.
Sincerely,
2
Robin M. Hittie
Chief Counsel