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