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Home My WebLink About18-565 MurphyPHONE: 717- 783 -1610 TOLL FREE: 1- 800- 932 -0936 ADVICE OF COUNSEL November 19, 2018 To the Requester: Ms. Karen M. Murphy, Ph.D., RN Dear Ms. Murphy: FACSIMILE: 717- 787 -0806 WEBSITE: www.ethics.pa.gov 18 -565 This responds to your letter dated September 11, 2018, by which you requested an advisory from the Pennsylvania State Ethics Commission ( "Commission "). Issue: Whether the Public Official and Employee Ethics Act "Ethics Act "), 65 Na-.U-S. §'1101 et sec.., would impose restrictions upon employment of the Secretary of Health for the Commonwealth of Pennsylvania following termination of Commonwealth service. Facts: You request an advisory from the Commission regarding the post - enation restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You served as the Secretarryy of Health for the Commonwealth of Pennsylvania from January 19, 2015, until June 30, 2017. The Secretary of Health is the head of the Pennsylvania Department of Health ( "Department of Health'). See, 71 P.S. § 66. While you were serving as the Secretary of Health, the Department of Health and various Commonwealth agencies collaborated to develop an innovative payment and delivery model, known as the Pennsylvania Rural Health Initiative (the "Initiative "), for the purpose of preserving rural hospitals In the Commonwealth. The Centers for Medicare & Medicaid Services endorsed the Initiative and provided funding to the Commonwealth to support the implementation of the Initiative and create a Rural Health Redesign Center. During the time that you led the Initiative, the Department of Health worked with the Hospitai Association of Pennsylvania and multiple rural hospitals, including Geisinger. The Department of Health also engaged payers, including Highmark, Geisinger Health Plan, and the University of Pittsburgh Health Plan, in developing the Initiative. When you concluded your Commonwealth service on June 30, 2017, the Initiative remained under development. In September 2017, you began a new role at Geisinger as Executive Vice President, Chief Innovation Officer, and founding Director Mur h , 18 -565 November 19, 2018 Page 2 of the Steele Institute for Health Innovation. Innovative payment and delivery models fall under your purview in your role with Geisinger. Geisinger has been working with the Department of Health and has agreed to participate in the Initiative as a hospital and payer. Geisinger does not receive additional funding or reimburse the Commonwealth for participating in the Initiative. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose restrictions upon your employment following termination of your Commonwealth employment. In particular, you ask whether the Ethics Act would impose restrictions upon you with regard to representing Geisinger and interacting with the Department of Health as the Initiative is implemented. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of e Ethics-Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§§ 1107(10}, (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinionladvice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacity as the Secretary of Health for the Commonwealth of Pennsylvania, you would be considered a public official/public employee and an "executive -level State employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of Commonwealth employment, you became a former public official/public employee and a "former executive -level State em loyee" subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: § 1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing. to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this 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 Pa.C.S. § 1103(i). Muur ham, 18 -565 November 19, 2018 Page 3 Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94 -011. However, Section 1103(i) would not restrict you fom Bing employed y, receivin19 compensation from, assisting, or acting in a representative capacity for a business subject to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Unlike Section 1103(i), Section 1103(8) does not prohibit a former public official /public employee from accepting a position of employment. However, it does restrict the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental bodv with which he has been associated for one year after he leaves that body. 65 Pa.C.S. § 1103(g) (Emphasis added). The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that your Commonwealth employment terminated on .June 30, 2017, which was more than one year ago, you are advised that the restrictions of Section 1103(19) of the Ethics Act have ceased to apply to you. Cf., Romano, Advice 17 -578; Confidential Advice, 17 -522; Confidential Advice, 16- 507, Con of ntiaTAdvice, 10 -549; Germanio, Advice 7 -599. Based upon the facts that have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 1103(i) only. It is expressly assumed that there has been no use of authority of office or employment, or confidential information received by being in the public position, for a private pecuniary benefit as prohibited by Section 1103(a of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or Judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. 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 Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as the Secretary of Health for the Commonwealth of Pennsylvania, you would be considered a public official /public employee and an "executive -level State emplo rl e" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. 1 01 et sec.., and the Regulations of Murphy, 18 -565 November 19, 2018 Page 4 the State Ethics Commission, 51 Pa. Code § 11.1 et s, etc . Upon termination of your Commonwealth employment, you became a former public official /public employee and a "former executive -level State employee" subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act, 65 Pa.C.S. §§ 1103(q), 1103(i). Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business subJ'ect to the conditions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that your Commonwealth em toyment terminated on June 30, 2017, which was more than one year ago, the restrictions of Section 1103(8) of the Ethics Act have ceased to apply to you. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, an 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, provided the requester 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writingg and must be act�� received at the Commission within thirty (30J days of the date o this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717-787-0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, r Robin M. Hittie Chief Counsel