HomeMy WebLinkAbout88-622 AntonoplosMs. Virginia Antonoplos
325 Rumson Drive
Harrisburg, PA 17104
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 12, 1988
88 -622
Re: Former Public Employee; Section 3(e), Director of Inpatient
Programs; Department of Public Welfare
Dear`Ms. Antonoplos:
This responds to your letter of July 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 Department of Public Welfare.
Facts: In your letter you state that you are currently employed
as the Director of Inpatient Programs, hereinafter Division, in
the Bureau of Hospital and Outpatient Programs in the Office of
Medical Assistance Programs in the Department of Public Welfare,
hereinafter DPW. After stating that you hold your current
position in an acting capacity since November of 1987, you
advise that you have worked in the Office of Medical Assistance
in a variety of positions since 1980 and that prior to that time
you worked in the Office of Income Maintenance. After advising
that your termination date will be August 15,_ -1988, you indicate
that your new employment will begin on August 16, 1988 with the
Hospital Association of Pennsylvania wherein you will work on
issues related to Medical Assistance Program as well as issued
involving other State Agencies. You then conclude by asking two
questions under the Ethics Act: the limitations that would be
imposed upon you in your work with the Hospital Association and
secondly the limitations on your interactions with individuals
;onsisting of your current subordinates, direct line supervisors,
other employees in the Office of Medical Assistance or DPW or in
other State Agencies.
Ms. Virginia D. Antonoplo-
August 12, 1988
Page 2
In your job description which is incorporated herein by
reference, you have the following duties and responsibilities as
the Director of the Division: establish objectives for inpatient
hospital programs together with any necessary revisions,
evaluations an& reviews; plan and direct research activities
including the preparation of program reports and analysis;
establish policy for inpatient hospital service program and
develop, evaluate, implement and revise regulations to carry out
the policy; direct the staff as to methods to set payment rates
for all participating hospitals; direct staff in matters relating
to legislation, federal regulations and State plans; meet with
provider groups, federal representatives and other State program
managers; establish policies for determining allowable inpatient
hospital costs; direct staff regarding invoice procedures and
standards for hospitals; direct the staff in matters relating to
the enrollment of hospitals in the Medical Assistance Program and
perform such other duties as are necessary or required.
as a Director for Division of Inpatient Programs, 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.
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 the "governmental body"
with which you were associated while working DPW 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 th•t the
Ms. Virginia D. Antonoplos
August 12, 1988
Page 3
"gwrernmental 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 v. Commonwealth of Pennsylvania, State Ethics
Commission, 435 A.d 940 (1981).
a^rom the description and analysis of your duties and
responsibilities and based upon the facts outlined above, your
jur,is1 responsibility, influence and control appears to
have been Division. Thus, the "governmental body" with which you
Lai-e been "associated" upon the termination of your employment
would be the Division. Therefore, within the first year after
y.i would leave DPW, Section 3(e) of the Ethics Act would apply
air restrict your "representation" of persons or new employers
vis-a-vis the Division.
The Ethics Act would not affect your ability to appear
before agencies or entities other than with respect to the
Diviion. likewise, there is no general limitation on the type of
employment in which you may engage, following your departure from
DPW. 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, 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.
The Commission, in its opinions, has also interpreted the
L4 . Virginia D. Antonoplo.
August 12, 1988
Page 4
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
Division), including, but not limited to, negotiations or
renegotiations on contracts with the Division;
2. Attempts to influence the Division;
3. Participating in any matters before the Division over
which you had supervision, direct involvement, or responsibility
while employed by DPW;
4. Lobbying, that is representing the interests a. any
person or employer before the Division 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 Division, constitutes an
attempt to influence your former governmental body. See
Kilareski, Opinion 80 -054. Therefore, within the first year
after you leave DPW, 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
Division, is not prohibited as "representation." See Kotalik,
Opinion 84 -007).
You may, assist in the preparation of any documents
presented to the Division so long as you are not identified as
the preparer. You may also counsel any person regarding that
person's appearance before the Division. Once again, however,
you : - activity in this respect should not be revealed to the
Division. Of course, any ban under the Ethics Act would-not
prohibit or preclude you from making general informational
inquiries of the Division 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
Division 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, Opinion 80 -056 and Beaser, Advice
81 -538.
Ms. Virginia D. Antonoplos
August 12, 1988
Page 5
Regarding the two inquiries in your advice request, be
advised that the limitation of Section 3(e) of the Ethics Act
does not relate to your new employer or to the nature of the work
you do with that employer; the restriction of 3(e) relates to the
representation .of your employer before your former governmental
body and those restrictions are specifically outlined above.
Turning to your second inquiry, once again the restrictions of
section 3(e) relate to your former governmental body which is the
Division and those restrictions are applicable regardless of
whether the employees are subordinates or direct line
supervisors. As to employees who are not within your former
governmental body which is the Division, Section 3(e) of the
Ethics Act would not restrict your dealings or interaction with
tllose individuals since they are not part of your former
governmental body.
Additionally, it is noted 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).
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
Dther than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Conclusion: As a Division Director in DPW, you are to be
considered a "public employee" as defined in the Ethics Act.
Upon termination of your service with DPW, 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 tD the requirements of the Ethics Act as outlined above.
Your governmental body for the purpose of the one year
representation restriction is the Division. Lastly the propriety
of your conduct has only been addressed under the Ethics Act.
Further, should you terminate your employment or servicel, as
outlined above you are reminded that the Ethics Act also
requires you to file a Statement of Financial Interests for the
year followiag 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
truthfr.11y all the ano.terial facts and committed the acts
con2.laiiied of in reliance on the Advice given.
Ms. Virginia D. Antonoplos
August 12, 1988
Page 6
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 t. Dopko,
General Counsel