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HomeMy WebLinkAbout93-587 YorkievitzDear Ms. Yorkievitz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 29, 1993 Ms. Kathy Yorkievitz Pennsylvania Partnerships for Children 931 North Front Street Suite 101 Harrisburg, PA 17102 -3422 93 -587 Re: Former Public Employee; Section 3(g); Pennsylvania Department of Public Welfare; Director of Bureau of Employment and Training Programs; Service on Advisory Committee for Department of Public Welfare. This responds to your letter of July 13, 1993, 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 the Director of the Bureau of Employment and Training Programs within the Department of Public Welfare following termination of service with the Bureau. Facts: From July 1, 1987 through June 25, 1993, you served as Director of the Bureau of Employment and Training Programs within the Department of the Public Welfare. You have submitted a copy of your job description and organizational chart and those documents are incorporated herein by reference. You state that in this job your primary responsibilities were planning and operating employment and job training programs for welfare recipients. Further, you worked with numerous other departments to identify educational and training resources which could be used to assist welfare clients in obtaining skills needed for employment. You were also responsible for assuring that the Public Welfare Department provided adequate child care assistance to clients participating in education and training programs. In May and June, 1992, you worked on a special assignment with the office of State and Federal Relations of the Welfare Department representing the Department in legislative discussions on the July 29, 1993 Page 2 subject of welfare reform. You also assisted that office in discussions with the House of Representatives in May, 1993. On July 6, 1993, you became an employee of Pennsylvania Partnerships for Children. This organization is an independent, non - profit research, resource and advocacy center for children. You have enclosed a copy of the Mission Statement of the organization and that document is also incorporated herein by reference. Further, you refer to possibly serving on the Child Health Subcommittee of the Medical Assistance Advisory Committee within the Department of Public Welfare. Pursuant to a telephone conference with the Department, the State Ethics Commission has been advised that the Medical Assistance Advisory Committee is a federally mandated committee that advises the State Medicaid Director. Members of the Committee are appointed by the Secretary of Public Welfare and are representatives of the medical community, consumers of medical assistance and members of welfare rights organizations. Positions on the Committee are uncompensated, however, travel expenses are reimbursed. There are various subcommittees on which members of the Committee serve as Chairs. These subcommittees advise the Committee. The Chair of each subcommittee appoints the subcommittee members. Positions on the subcommittees are similarly non - compensated, but travel expenses are reimbursed. Neither the Committee nor the subcommittees have any administrative or directive power or authority over any department policy or any expenditure of funds. Their function is strictly to advise and while the Medical Assistance Advisory Committee may follow the advice of the subcommittees, and the State Medicaid Director may follow the advice of the Committee, there is no legal requirement to do so. Based upon the above, you request an advisory from the State Ethics Commission as to what restrictions apply to you under the Ethics Law in connection with your new employment. You further ask whether you may serve as a member of the Department of Public Welfare, Medical Assistance Advisory Committee, Child Health Subcommittee. Discussion: As Director of the Bureau of Employment and Training Programs for the Department of Public Welfare, you were 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. §402; 51 Pa. Code §11.1. 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 July 29, 1993 Page 3 activities where the economic impact is greater than de the interests of another person. Consequently, upon termination of public service, a "former public employee" subject to Section 3(g) of Official and Employee Ethics Law. Section 3(g) of the provides that: minimis on you became the Public Ethics Act 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 were associated while working with The Bureau of Employment and Training Programs 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 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 were associated upon termination of public service would be The Department of Public Welfare, 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 July 29, 1993 Page 4 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 Bureau of Employment and Training Programs, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Department of Public Welfare. 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..." Lecrislative 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 were associated is the Pennsylvania Department of Public Welfare, in its entirety. 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, July 29, 1993 Page 5 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. 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 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. July 29, 1993 Page 6 You may assist in the preparation of any documents presented to the Department of Public Welfare. However, you may not be identified on documents submitted to the Department. You may also counsel any person regarding that person's appearance before the Department. Once again, however, the activity in this respect should not be revealed to the Department. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Department 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 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. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. Further, 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. You next inquire as to whether you may serve as a Member of the Child Health Subcommittee of the Medical Assistance Advisory Committee within the Department of Public Welfare. Positions on the Subcommittee are non - compensated, however, travel expenses are reimbursed. This subcommittee is one of several that advise the Medical Assistance Advisory Committee. This subcommittee has no administrative or directive power or authority over any department policy or any expenditure of funds. Its function is strictly to advise the Committee and the Committee is not legally required to July 29, 1993 Page 7 follow that advice. Under the State Ethics Law and Regulations, if an advisory board has no authority to expend public funds, other than reimbursement for personal expense, or to exercise otherwise the power of the Commonwealth or a political subdivision thereof, its members are not considered to be "Public Officials ". 51 Pa Code 5 11.1. Since members of advisory boards are not public officials, they are not subject to the Ethics Law, except Sections 3(b) and 3(c), which apply to everyone. In this case, the Medical Assistance Advisory Committee and its subcommittees do not have the authority to expend public funds other than reimbursement of personal expenses. They cannot exercise the power of the Commonwealth or a political subdivision. Thus, the members of the Committee and its subcommittees are not "public officials" as defined in the Ethics Law. Accordingly, as a Member of the Medical Assistance Advisory Committee, Child Health Subcommittee, you would not be considered a "public official ". Hence, you would not be subject to the provisions of the Ethics Law in this position other than Sections 3(b) and 3(c). The Ethics Law does not prohibit you from serving on that subcommittee. While serving as a member of the subcommittee, however, you may not have any prohibited contact with the Department of Public Welfare regarding the Pennsylvania Partnerships for Children, in violation of Section 3(g), as discussed above. 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 a Director of the Bureau of Employment and Training Programs with the Department of Public Welfare, you were a "public employee" as defined in the Ethics Law. Upon termination of service with the Bureau, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Department of Public Welfare, in its entirety. The restrictions as to representation outlined above must be followed. Further, you may serve on the Medical Assistance Advisory Committee Child Health Subcommittee. In that position, you would not be a public official and would not be subject to the provisions of the Ethics Law, except Sections 3(b) and 3(c). As a member of the subcommittee, however, you may not engage in any activity in violation of Section 3(g). The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, since service has been terminated, as outlined above, the Ethics Law also requires that a Statement of Financial July 29, 1993 Page 8 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. 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 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 513.2(h). 'ncerely, Vincent . Dopko Chief Counsel