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HomeMy WebLinkAbout92-661STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 29, 1992 Mr. Peter D. Archey 92 -661 1814 Elder Street Reading, PA 19604 Re: Former Public Employee; Section 3(g); Director of Administration, Administrative Officer V; Pennsylvania Health Care Cost Containment Council. Dear Mr. Archey: This responds to your letters of November 24, 1992, and December 4, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Director of Administration, classified as an Administrative Officer V, following termination of service with the Pennsylvania Health Care Cost Containment Council. Facts: As Director of Administration of the Pennsylvania Health Care Cost Containment Council, an independent state agency, you request an advisory from the State Ethics Commission. You are leaving the aforesaid position and have not confirmed another position, but seek an advisory regarding your future obligations relative to that organization. You state that you are especially interested in whether you may participate as a member of the public at public committee meetings of the Health Care Cost Containment Council. You ask whether you may offer written comment on any proposed regulations appearing in the Pennsylvania Bulletin or which are debated at the Council committees or full Board meetings. You also ask whether submitting written comment and /or testifying at a legislative hearing focused on the reauthorization of the Council would be allowable. Finally, you state that as the Council publishes considerable useful consumer data and is the only source which does so, you wish to be able to publicly support the continuation of the Council as a data source. According to your most recent correspondence of December 4, 1992, your employment with the Pennsylvania Health Care Cost Mr. Peter D. Archey December 29, 1992 Page 2 Containment Council has now ceased. Copies of your job description and an organizational chart have been obtained, which documents are incorporated herein by reference. It is noted that your job description indicates that your job classification was "Administrative Officer V." Discussion: As the Director of Administration of the Pennsylvania Health Care Cost Containment Council ( "PHCCCC "), classified as an Administrative Officer V, you would be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you became a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental body with which you have been associated while working with the PHCCCC must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision Nr. Peter D. Archey December 29, 1992 Page 3 by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you have been associated upon termination of public service would be the PHCCCC in its entirety. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with the PHCCCC, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the PHCCCC in its entirety. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 51901, it is clear that the governmental body with which you have been associated is the PHCCCC in its entirety. Mr. Peter D. Archey December 29, 1992 Page 4 Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed Mr. Peter D. Archey December 29, 1992 Page 5 by or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shay, Opinion 91 -012, the Commission held that Section 3(g) would prohibit the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to the PHCCCC. However, you may not be identified on documents submitted to the PHCCCC. You may also counsel any person regarding that person's appearance before the PHCCCC. Once again, however, the activity in this respect should not be revealed to the PHCCCC. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the PHCCCC to secure information which is available to the general public. 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. In applying the above restrictions to your specific proposed conduct, you are advised that you may participate as a member of the public at public committee meetings of the PHCCCC. This conclusion is based upon two reasons. First you would be acting as a member of the public rather than engaging in representation of another person, such as a new employer, before that governmental body. Second, in such a capacity, you would not be taking action with "promised or actual compensation" as prohibited by Section 3 (g). The same reasoning would apply to all of your other specific inquiries. Your proposed conduct would not be restricted so long as you were acting solely as a member of the public, in no way representing a person -- such as a new employer -- before your former governmental body with "promised or actual compensation," during the one year period of applicability of Section 3(g) of the Mr. Peter D. Archey December 29, 1992 Page 6 Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /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. The above conclusions are consistent with the restrictions that the full Commission imposed upon a former member of the PHCCCC with regard to Section 3(g) in Morris, Opinion 89 -026. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Conclusion: As the Director of Administration of the Pennsylvania Health Care Cost Containment Council ( "PHCCCC "), classified as an Administrative Officer V, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the PHCCCC, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the PHCCCC in its entirety. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), 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 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 Mr. Peter D. Archey December 29, 1992 Page 7 issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52..12. incerely, O c f (A- J Vincent . Dopko Chief Counsel