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HomeMy WebLinkAbout87-531 RadkeMr. Gerald F. Radke Department of Public Welfare P.O, Box 2675 Harrisburg, PA 17105 Dear Mr. Radke: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 March 30, 1987 ADVICE OF COUNSEL 87 -531 Re: Former Public Employee; Section 3(e), Deputy Secretary, Department of Public Welfare This responds to your letter of March 6, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the The Pennsylvania Department of Public Welfare. Facts: You have recently terminated your employment with the Commonwealth of Pennsylvania. You served Commonwealth as a Deputy Secretary for Medical Assistance in the Pennsylvania Department of Public Welfare. The purpose of the Medical Assistance program is to use state and federal funds for the payment of health care provider services that are delivered to low income citizens in the commonwealth. You advise that you are terminating your employment with the Commonwealth of Pennsylvania and you will be discussing employment with a computer company in Richmond, Virginia. In your position with the Pennsylvania Department of Public Welfare, you were generally in charge of the administration of program planning and policy development for the comprehensive medical assistance program in the Commonwealth of Pennsylvania. You directed and coordinated program planning, policy formation and standards development for the comprehensive state -wide medical assistance programs and services administered by the Department of Public Welfare. Work in this capacity included serving as the principal advisor to the secretary regarding department wide medical assistance program planning, policy, and evaluation. You directed the formulation and implementation of the specific functional plans required under federal medical assistance programs, insuring compliance with established standards and laws. Wurk also included defining program objectives, departmental policies, standards of performance, methods of implementation, establishment of controls, and program evaluation. You represented the Department meetings with high level federal and state cfficials, medical agencies and providers, professional, civic and community .;rganizations. Work is performed with a high degree of independent judgemert limited only by federal and state legislation and departmental policy. Mr. Gerald F. Radke March 30, 1987 Page 2 You also were responsible for making recommendations to the secretary concerning staff, organization, and operational improvements to enhance the effectiveness of the administration of the medical assistance programs and services. You also directed special investigative activities stemming from allegations or detection of fraud or abuse by providers or clients. You were also responsible for coordinating the administration of the medical assistance program with other state agencies. . You advised that the computer company with which you are currently discussing potential employment has had prior contractural relationships with the Pennsylvania Department of Public Welfare and the Pennsylvania Department of Aging. You indicate that this position if accepted would not involve direct contact with the Pennsylvania Department of Public Welfare. The current contract between the Department of Welfare and the computer company involves the processing of claims for services submitted by the medical assistance providers. None of these contracts involve grants or loans or the promise of a grant or loan from the Commonwealth of Pennsylvania. You have requested the advice of the State Ethics Commission regarding your possible employment with this company and any restrictions that may be applicable thereto. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a deputy secretary for medical assistance for the Pennsylvania Department of Public Welfare, hereinafter the Department, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Plowman, 85 -582; Lyng, 87 -504. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (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 year after he leaves that body. 65 P.S. 403. Gerald F. Radke March 30, 1987 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Department. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within the Department. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Department. Therefore, within the first year after you would leave the Commonwealth, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Department. Additonally, it should be noted that the one year representation restriction would also be applicable to any other executive branch entity, over which you had influence responsibility and control. While neither your letter of request nor your job description indicate that you in fact had any such responsiblity influence or control over any other entity of the executive branch, the one year representation restriction would extend to such entities in the event that you stood in the relationship as noted above. As such, if you are in need of further advice regarding this additional factor, such may be requested at an appropriate time. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Gerald F. Radke March 30, 1987 Page 4 Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not liinited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Department ), including, but not limited to, negotiations or renegotiations on contracts with the the Department; 2. Attempts to influence the Department; 3. Participating in any matters before the Department over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the Department in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Department, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Department so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department. Once again, however, your activity in this respect should not be revealed to the the Department. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Department to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the the Department your representation of, or work for your new employer. Gerald F. Radke March 30, 1987 Page 5 In addition to the foregoing, and in order to be complete, you should also be aware of the special provision of the Ethics Act relating to executive -level employees. In this respect the Act provides that: Section 3. Restricted activities. (g) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 403(g). Executive -level State employee is defined as: Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a deicison. 65 P.S. 402. You, as a deputy secretary for the Department of Public Welfare are clearly within this definition. Muir, 85 -018; Nelson, 85 -008. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Gerald F. Radke March 30, 1987 Page 6 Additionally, we note that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Conclusion: As a deputy secretary for medical assistance, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Pennsylvania Department of Public Welfare, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Pennsylvania Department of Public Welfare. Additionally, your restriction may be extended to other agencies of the executive branch over which you had any influence, responsibility or control. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. 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. Si ontino General Counsel