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HomeMy WebLinkAbout88-571 EnglehartMs. Mercedes P. Englehart 301 E. Ogle Street Ebensburg, PA 15931 . Dear Ms. Englehart: STATE ETHICS COMMISSION 308 FINANCE BUILDING , P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 2, 1988 88 -571 Re: Former Public Employee; Section 3(e), Health Department, Health Facility Quality Examiner I This responds to your letter of April 18, 1988, 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 Pennsylvania Department of Health. Facts: In your advice request you state that you retired on December 22, 1S7 after 14 years of employment with the Pennsylvania Department of Health , hereinafter Department, Bureau of Quality Assurance, hereinafter Bureau, in the Division of Long Term Care as a Health Facility Quality Examiner 1. You state that you have become aware of opportunities to act as a Quality Assurance Consultant for owners or operators of long term care facilities and that you are interested in pursuing employment opportunities in those areas. You then state that the consulting positions that you would be seeking would involve the following duties: advising on matters affecting the quality of care in longterm care facilities; advising on matters of quality as they affect compliance with state and federal standards; advising on staff development and advising on the implementation of policies and procedures needed to assure quality patient care in compliance with state or federal guidelines. You then indicate that your duties would not include any representation of clients or employers before the state or federal agencies either directly or indirectly relating to health care or specifically as to long term care facilities. From your job description specification, which is incorporated here and by reference, the duties and Ms. Mercedes P. Englehart Page 2 responsibilities of a Health Facility Quality Examiner are as follows: monitor facilities with poor compliance records; survey new and existing facilities; submit written reports or findings which would include appropriate recommendations for licensure and certification; investigate complaints against facilities; investigate unusual situations occurring in facilities and make report thereon; tour and inspect the physical environment of facilities; provide consultation to facilities relative to deficiency correction; prepare detailed reports for exceptions and waivers; serve as a witness for the Division of Long Term Care at hearings; prepare for litigation as directed; participate in meetings in various training programs and perform such other duties as are required of an individual. You conclude by requesting advice from the Stat, Ethics Commission regarding the limitations upon you following the termination of your service with the Department. Discussion: As a Facility Quality Examiner for Department of Health, 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 deminimus on the interests of another person. 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. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with the Department. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this context, the Ethics Ms. Mercedes P. Englehart Page 3 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, Opinion 79 -010. See also Kure v. 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 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, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis 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. 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 t -e 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, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation 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 employee. 51 Pa. Code §1.1. Ms. Mercedes P. Englehart Page 4 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 Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating 4.n any matters before the Bureau 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 Bureau in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 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, Opinion 80 -054. Therefore, within the first year after you leave the Department, 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, Opinion 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, Opinion 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 Ms. Mercedes P. Englehart Page 5 by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, Advice 81 -538. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his,judgment would be influenced thereby. It is assumed such a situation d -es not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. 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 Etnics Act. Conclusion: As a Health Facility Quality Examiner, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department, 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. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Ms. Mercedes P. Englehart Page 6 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. such. This letter is a public record and will be made available as Finally, if you disagree wi 'ch 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 former 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