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HomeMy WebLinkAbout87-598 BimlerMr. Michael A. Bimler, R. Ph. Manager SURS /Utilization Review The Computer Company - PACE Division 2330 Ararat Boulevard Harrisburg, Pennnsylvania 17110 Dear Mr. Bimler: Maihng Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 August 4, 1987 ADVICE OF COUNSEL Re: Former Public Employee; Section 3(e), Medical Assistance Pharmaceutical Promgram Examiner This responds to your letter of June 24, 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 Department of Public Welfare. Facts: Until May 15, 1987, you were employed by the Department of Public Welfare, Office of Medical Assistance as a Medical Assistance Pharmaceutical Program Examiner in the Utilization Review Bureau, hereinafter the Bureau. From your job description and specification, which are incorporated herein by reference, it appears that your specific duties and responsibilities were to review and evaluate the pharmaceutical services received by medical assistance recipients. Specifically, as part of your duties, you participate in the development of standards, policies, and procedures which are designed to insure appropriate use of benefits by recipients. Further, you utilize your pharmacy background to review patient history profiles to identify those recipients who are overutilizing or abusing pharmaceutical or medical services. In addition, you analyze quarterly profiles to select recipients for a more indepth review as potential restricted recipients. You also prepare review sheets which delineate findings, violations and case State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 87 -598 Mr. Michael A. Bimler, R. Ph. August 4, 1987 Page 2 recommendations that serve as the basis for the Department's administrative action. Written information is prepared by you on complaints received by providers regarding abusive recipients. Further, cases for scheduled appeal hearings are prepared by you and discussed with a section supervisor. As part of your duties, you also may be required to testify at administrative appeal hearings as a Department witness in order to provide testimony substantiating restrictions on a recipient. You also serve as a professional consultant relative to drug classes, drug composition, recommended dosages, and potential adverse reactions. Lastly, you perform various micellaneous duties and assignments as are necessary to meet the goals and objectives of the Bureau. Following the termination of your employment with the Commonwealth, you accepted a position as manager of SURS /Utilization Review with The Computer Company, hereinafter TCC, PACE Division. You advise that the Department of Public Welfare had a contract with a different division of TCC, the Medicaid Division to perform front -end claims processing for their medical program. You state that while employed by the Department of Public Welfare, you had nothing to do with awarding these contracts. Further, you state that TCC /PACE Division is under contract to administer the PACE Program for the Department of Aging and that you had nothing to do with the awarding of that particular TCC /PACE contract. 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 former Pharmaceutical Program Examiner for Department of Public Welfare, 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, Klock, 86 -630. 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. Mr. Michael A. Bimler, R. Ph. August 4, 1987 Page 3 Initially, to answer your request the "governmental body" with which you were associated while working with the Department of Public Welfare must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. 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 the Utilization Review Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau. Therefore, within the first year after you would leave the Department of Public Welfare, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers . vi s -a -vi s the Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department of Public Welfare. It is noted, 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: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited 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: Mr. Michael A. Bimler, R. Ph. August 4, 1987 Page 4 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by the Bureau; 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, constitutes an attempt to influence your former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after you leave the Department of Public Welfare, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Bureau, is not prohibited as "representation." See, Kotalik, 84 -007). You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau 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 Bureau your representation of, or work for your new employer. 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. 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). Mr. Michael A. Bimler, R. Ph. August 4, 1987 Page 5 Conclusion: As a Medical Assistance Pharmaceutical Program Examiner, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the 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 Bureau. 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. Sincerely, Vincent J. "Dopko General Counsel