HomeMy WebLinkAbout19-534 QuimbyPHONE: 717-783-1610
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A.
STATE ETHICS COMMISSION
FINANCE BUILDING
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
A 0 0 a
July 22, 2019
To the Requester:
Ms. Christine Quimby
Dear Ms. Quimby:
FACSIMILE: 717-787-0806
WEBSITE: wwwq111j1(;,§,piA, _qg y
19-534
This responds to your letter dated July 9, 2019, 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
7577S. § 1101 et se , would impose restrictions upon employment of a Public Health
Program Admifi—trator following termination of employment with the Pennsylvania
Department of Health.
Facts: You request an advisory from the Commission regarding the post-
ern oyTent restrictions of the Ethics Act. You have submitted facts that may be fairly
summarized as follows.
You are currently employed as a Public Health Program Administrator with the
Pennsylvania Department of Health ("Department of Health") in the Bureau of
Communicable Diseases. You have submitted copies of your official Commonwealth
position description and an organizational chart for the Bureau of Communicable
Diseases, which documents are incorporated herein by reference. A copy of the job
classification specifications for the position of Public Health Program Administrator dob
code 34621) has been obtained and is also incorporated herein by reference.
In Your current Commonwealth position, you are responsible for administering
HIV Ryan White Part B program (the "Part B Program") services in the Division of
HIV/AIDS, HIV Care Section, You state that you oversee Part B Pro - ram rebatelgrant
funds ("Part B Program Funds"), which includes overseeing contract
ing in relation to
seven regional grantees, including the Family Health Council of Central Pennsylvania
("Council"), that receive Part B Program Funds from the Department of Health and then
subcontract with provider agencies ("Provider Agencies") for HIV care services.
The Department of Health contracts directly with the Council through a sole
source agreement. The Council receives Part B Program Funds and then subcontracts
with Provider Aqencies, including the Pennsylvania State University College of
Medicine/Milton 5. Hershey Medical Center ("Medical Center"), through a competitive
procurement process. The Medical Center receives Part B Program Funds through the
Council. The Department of Health does not contract directly with the Medical Center for
HIV care services,
Wimby, 19-534
July 22, 2019
Page 2
You have been offered the position of Research Project Manager 3 in the HIV
program at the Medical Center. In the aforesaid position, you would have a role in
managing the Part B Program Funds that the Medical Center receives through the
Council. You state that although your interaction with the Department of Health would
be minimal, it is possible that you would be in contact with staff of the Department of
Health during the course of your employment as a Research Project Manager 3 for the
Medical Center.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose prohibitions or restrictions upon you with regard to accepting
employment as a Research Project Manager 3 for the Medical Center.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the - . Tics ct, 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 en age 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 trut%fully disclosed all of the material facts.
Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is
prohibited from engaging in conduct that constitutes a conflict of interest:
§ 1103. Restricted activities
(a) Conflict of interest. --No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
65 Pa.C.S. § 1103(a).
The following terms related to Section 1103(a) are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public lofficial or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
Quimbv, 19-534
July 22, 2019
Page 3
65 Pa,C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C,& § 1102, a public official/public empl7ee is
prohibited from using the authorityof public office/employment or confidential
information received by holdingsuch public position for the private pecuniary benefit
of the public official/public employee 4mpsuelf , any member of his immediate family, or a
business with which he or a member of his immediate family is associated. The use of
authority of office is not limited merely to voting, but extends to any use of authority of
office including,discussing, conferring with others, and lobbying for a
subut not limited to,
particular result. Juliante, Order 809.
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 anything of monetary value and no
public official/public employee shall solicit or accept anything of monetary value based
u99 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 questions presented.
As a Public Health Program Administrator for the Department of Health, you
would be considered a "public employee" subject to the Ethics Act and the Rerlations
of the State Ethics Commission, See, 65 P,a.C.S. § 1102; 51 Pa. Code § 11. ; Dive
Advice 17-561. This conclusion -is—based upon the position description and the Jo
classification specifications, which when reviewed on an objective basis, indicate clearly
that the power exists to take or recommend official action of a non -ministerial nature
with respect to one or more of the following: contracting; procurement; administering or
monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating;auditing; or other activity(ies) where the economic impact is greater than de minimis on
the interests of another person.
Consequently, upon termination of your employment with the Department of
Health, you would become a "former public employee" subject to Section 11 03(g) of the
Ethics Act.
While Section J 1 03(g) does not prohibit a former public official/public employee
from accepting a position Or employment, it does restrict e former public official/public
employee with regard to "representing" a "person" before "the governmental body with
which �e 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 atter he leaves that body.
65 Pa.C.S. § 11 03(g) (Emphasis added),
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
Quimby, 19-534
July 22, 2019
Page 4
"Represent." To act on behalf of any other person in
an activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting
bid or contract proposals which are signed ly or
contain e name of a former public official or public
employee.
"Person." A business, governmental body,
individual, corporation, union, association, firm, partnership,
committee, club or other organization or group of per -sons.
"Governmental body with which a public official
or public employee is or has been associated." The
governmental b within State government or a. political
body
the public official or employee is or has
subdivision by which I
been employed or to which the public official or employee is
or has beappointed or elected and subdivisions and
offices within that governmental body.
65 Pa.C.S. § 1102,
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public officiate ri—cemployee himself,
Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur,
Up—inion 95-007.
The term "represent" is also broadly defined to prohibit acting on behalf of any
person in any activity. Examples of prohibited representation include: (1), personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signedby or contain the name of
the former public official/publici employee; (4) participating n any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
PopovicOpinion 89-005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits the inclusion of the name of a former public official/
public, employee on invoices submitted by his new employer to the former governmentai
body, even if the invoices pertain to a contract that existed prior to termination of service
with such governmental body. Sh Opinion 91-012. However, if such a re -existing
ve mplo, r6 worked, e name of
contract does not involve the uri`i� �re a former public e , e t�
the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. AbramsNVebster,
Opinion 95-011.
A former public official/public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former public
official/public employee may not be identified on documents submitted to the former
governmental body. The former public official/public employee may also counsel any
personregarding that person's appearance before his former governmental body. Once
again however, the activit in this respect should not be revealed to the former
governmental body. The &ics, Act would not prohibit or preclude making general
informational inquiries to the former governmental body to secure information which is
available to the general public, but this must not be done in an effort to indirectly
influence the former governmental body or to otherwise make known to that body the
representation of, or work for, the new employer.
Quimbv, 19-534
July 22, 2019
Page 5
Section 1103(g) only restricts the former public official/public employee with
regard to representation before his former governmental body. The former public
official/public employee not restricted as to representation before other agencies or
entities. However, the . governmental body with which a public off icial/public employee
is or has been associated" is not limited to the particular subdivision of the agency or
other governmental body where the public official/public emloyee had influence or
control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion 90-006; Sharp, Opinion 90-009-R.
The governmentalo body
with which you would be deemed to have been
associated upon termination your employment with the Department of Health would
be the Department of Health in its entirety, including but not limited to the Bureau of
Communicable Diseases. Therefore, for the first year following termination of your
employment with the Department of Health, Section 1103(g) of the Ethics Act would
apply and restrict 'representation" of a "person" before the Department of Health,
You are advised that Section 1103(g of the Ethics Act would not prohibit you
from accepting employment as a Research .Manager�roject3 for the Medical Center.
However, during the first year following termination oyour employment with the
Department of -Health, Section 1103(y) of the Ethics Act would prohibit you from
performing any job duty(ies) that would involve prohibited representation before the
Department of Health as delineated above.
With regard to Section 11 03(a) of the Ethics Act, you are generally advised that
the elements of a violation of Section 11 03(a) of the Ethics Act would not be established
as a result of your prospectively entering into a business/employment relationship with
the Medical Center subject to the conditions that you: 1) did not use the authority of
your public position with the Department of Health in ma er(s) pertaining to the Medical
Center when ou had an actual or reasonable expectation that you would enter into a
business/employment arrangement with the Medical Center or would otherwise receive
a private pecuniary benefit relating to the Medical Center; and (2) did not otherwise use
the authority of your public position with the Department of Health or confidential
information received as a result of being in your public position with the De artment of
Health in furtherance of securing a business/employment oyment arrangement with the Medical
Center or other private pecuniary benefit relating to the Medical Center. Cf., Desmond,
Opinion 08-004.
Lastly the propriety of the proposed conduct has only been addressed under the
Ethics Act; tyre app
licability of any other statute, code, ordinance, regulation or other
o code of conduct her 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: As a Public Health Program Administrator for the Pennsylvania
Department of Health ("Department of Heafth"), you would be considered a 'Public
employee" subject to the Public Official and Employee Ethics Act ("Ethics Act' 65
a,C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, Act'),
Pa.
:;ode § 11.1 et se . Upon termination of your employment with the Department of
Health, you wouldbecomea "former public employee" subject to Section 1103(A of the
Ethics Act. The farmer governmental body would be the Department of Hea t in its
entirety, including but notlimited to the Bureau of Communicable Diseases. For the first
year following termination of your employment with the Department of Health, Section
11 03(g) of the Ethics Act would apfly and restrict "representation" of a "person" before
the Department of Health. The restrictions as to representation outlined above must be
followed.
Cu,19 34
JulPage 6
Section 1103(g) of the Ethics Act would not prohibit you from accepting
employment as a Research Project Manager 3 for the Pennsylvania State University
College of Medicine/Milton S. Hersheyy Medical Center (`Medical Center""). However,
during the first year following termination of your employment with the Department of
Health, Section 1103(g) of the Ethics Act would prohibit you from performing any job
duty(ies) that would involve prohibited representation before the Department of Health
as delineated above.
With regard to Section 1103(a) of the Ethics Act, you are generally advised that
the elements of a violation of Section 1103(a) of the Ethics Act would not be established
as a result of your prospective] y entering into a business/employment relationship with
the Medical Center subject to the conditions that you: (1) did not use the authority of
your public position with the Department of Health in matttter(s) pertaining to the Medical
Center when you had an actual or reasonable expectation that you would enter into a
business/employment arrangement with the Medical Center or would otherwise receive
a private pecuniary benefit relating to the Medical Center; and (2) did not otherwise use
the authority of your public position with the Department of Health or confidential
information received as a result of being in your public position with the Department of
Health in furtherance of securing a business/employment arrangement with the Medical
Center or other private pecuniary benefit relating to the Medical Center.
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 actual)
received at the Commission within thirty (31 days of the date
vice pursuant to 51 Pa. Code § 93.2(h). Theappeal 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 di"smissal of the appeal.
Sincerely, ,.
obin M. Hittie
Chief Counsel