HomeMy WebLinkAbout94-601-S MyersR. David Myers
104 N. 23rd Street
Camp Hill, PA 17011
Dear Mr. Myers:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 17, 1995
94 -601 -S
Re: Former Public Employee; Section 3(g); Executive -Level State
Employee; Section 3(i); Special Assistant to the Governor;
Supplementary Advice.
This responds to your letter of January 11, 1995, in which you
requested supplementary advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of the Special Assistant
to the Governor following termination of employment.
Facts: As to an August 10, 1994 letter of request for an advisory
opinion, Advice of Counsel 94 -601 was issued to you on September
14, 1994. At that time you were Special Assistant to the Governor
and in search of a new job. You have since left government and
seek a more definitive statement as to the limitations the Ethics
Law places upon you. As of December 30, 1994, you resigned as
Special Assistant to Governor Casey wherein you served as the
Governor's liaison with the Department of Health (DH) and the
Department of Public Welfare (DPW), the Governor's Drug Policy
Council and as the Governor's voting representative on the Board of
Governors for the State System of Higher Education.
You have accepted employment with the Hospital Association of
Pennsylvania on January 16, 1995; on November 14, 1994, you recused
yourself from all matters relating to the Hospital Association of
Pennsylvania.
You were involved in several special projects including the
Children's Health Insurance Program (CHIP), the Medical Assistance
Medical Education Task Force and HealthChoices RFP. CHIP is
jointly operated by the Insurance and Health Departments. Through
annual contracts with commercial health insurance carriers, the
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February 17, 1995
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Commonwealth purchases health insurance coverage for previously
uninsured children. On November 14, you ceased your involvement
with CHIP and have recused yourself.
The Medical Assistance Medical Education Task Force is a joint
effort of DPW and the Hospital Association of Pennsylvania,
established pursuant to a legal settlement. The Task Force
evaluates whether medical assistance medical education funds are
being spent pursuant to the terms of the settlement which expires
on July 1, 1995 unless extended by mutual agreement. You have
ceased involvement with the Task Force in September, 1994 and
recused yourself from involvement since November 14th. The
HealthChoices RFP is a request for bids by DPW to offer managed
health care services to medical assistance recipients in six
counties located in Southeastern Pennsylvania. The RFP is the
subject of litigation and no contracts have been issued despite the
fact that the RFP itself was released early in 1994. The decision
as to how or if to proceed with the RFP will rest with the new
administration. It is likely that if HealthChoices is pursued, the
RFP will be changed substantially from the proposal upon which you
worked. You recused yourself from further involvement with
HealthChoices since November 14th.
After referencing the advice, you state that you are barred
from representing any person including the Hospital Association,
before DPW, DH, the Governor's Drug Policy Council, the State
System of Higher Education and the Executive Offices of the
Governor. Since the special projects mentioned above are
activities involving at least one of the above agencies, you state
that you would be barred from representing anyone on those matters,
whether you recused yourself from involvement before resignation.
Further, since CHIP is managed by the Insurance Department, you
state that you would also be barred from representing anyone before
that state agency concerning CHIP for a period of one year. You
express your understanding that you cannot represent anyone before
these agencies for a period of one year after resignation and that
the bar is not affected by your early recusal from involvement with
activities relating to the Hospital Association. You ask whether
your assumptions are correct.
After noting that consideration may be given to consolidating
state agencies or shifting programs from one state agency to
another, you ask how such action would affect your ability to
represent the Hospital Association if such occurred before December
30, 1995. You again reference the Advice and state that you may
counsel anyone or assist them in the preparation of materials and
documents but your involvement cannot be identified in those
documents nor can you participate personally or directly in matters
before those agencies. You then inquire how the limitations would
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February 17, 1995
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affect your ability to attend meetings and other information
sessions. You inquire that if DPW holds a briefing open to the
public as to the 1995 -1996 budget which would have implications for
DPW, would you be permitted to attend this session. In addition,
would you be permitted at such a session to ask questions. You
note that both DH and DPW have advisory committees which hold
meetings which are open to the public. You ask whether you may
attend these sessions, and if so, ask questions. You state that it
is clear to you from the Advice that you may not participate in
private meetings with representative agencies on behalf of yourself
or other persons nor could you participate in negotiations or
lobbying efforts in which representatives of those entities would
also be participating or be involved.
You ask how the limitations on representation would affect
your personal relationships with individuals who may be employed by
one of the entities with whom you must limit your contact. In
particular, you inquire whether a long standing friendship with an
individual employed by the State System of Higher Education which
predates both your employment with the system and your tenure with
the Governor would be affected. You ask whether you would be
precluded from maintaining a friendship during the one year period
after resignation from the Governor's Office.
Discussion: Advice of Counsel 94 -601 is incorporated herein by
reference as if fully set forth herein. The scope of this Advice
will be limited to addressing the specific questions which you have
posed. As to these questions posed which have been answered and
explained in the prior Advice, you are advised to refer to that
Advice of Counsel.
As to your inquiry whether you would be barred from
representing persons before your former governmental body even
though you recused yourself prior to your resignation, you are
advised that you would be prohibited from representing persons
before the governmental body for a period of one year which
commenced on the date of your resignation on December 30, 1994 and
continues until December 30, 1995; the foregoing applies regardless
of your recusal.
As to the inquiry concerning CHIP which is also managed by the
Insurance Department, you are advised that as long as you did not
have involvement with the Insurance Department in your function as
a Special Assistant as it related to the CHIP or any other program,
then you would not be precluded from representing a person before
the Insurance Department.
Turning to your inquiry regarding the shifting or
consolidation of state agencies vis -a -vis your ability to represent
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February 17, 1995
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the Hospital Association, you are advised that your governmental
body is as noted in the Advice of Counsel. However, in the event
that certain bureaus or divisions within your governmental body
became shifted or consolidated into another state agency, you are
advised under those circumstances that your governmental body would
not only include the agencies noted in the Advice but would also
include such divisions or bureaus that were shifted. However,
although your former governmental body would expand to include the
shifted divisions or bureaus, the remainder of the department into
which that bureau or division was consolidated or shifted would not
be your former governmental body. Thus, if the Drug Policy Council
for example were shifted or consolidated into some other cabinet
department which was not otherwise your former governmental body,
you are advised that your governmental body would only additionally
encompass the Drug Policy Counsel within that Department but not
any other part of that Department.
Regarding your inquiry as to how the restrictions of Section
3(g) of the Ethics Law would affect your ability to appear before
agencies as to attending meetings or informational sessions, you
are advised that such activity would depend upon your status when
you attend such meetings. For example, if you are - appearing as a
concerned citizen and offering input or asking questions, such
action would not be prohibited by Section 3 (g) of the Ethics Law in
that you would not be representing a person for compensation.
However, if you are representing a new employer or some other
person for promised or actual compensation, you are advised that
such activity would indeed be prohibited by Section 3(g) of the
Ethics Law. Regarding your last inquiry as to how the restriction
would affect your personal relationships with individuals which
predated your employment, you are advised that the answer depends
upon the nature of your contacts with these individuals. Thus, if
such contacts are merely of a social nature without any
representation for compensation being present, such social contacts
are not prohibited by the Ethics Law. Confidential Advice 95 -515.
However, if such contacts are generated for the purpose of
representation of a person as defined under the Ethics Law for
promised or actual consideration, in such case that activity is
prohibited representation and is not allowable under Section 3(g)
of the Ethics Law.
Conclusion: Supplementing Advice of Counsel 94 -601, you are a
former public official /employee and must comport your conduct to
conform to the requirements of Section 3(g) of the Ethics Law set
forth in Advice of Counsel 94 -601 as further delineated above.
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
Myers, R. David, 94 -601 -S
February 17, 1995
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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
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 writing and must be actually
received at the Commission within fifteen (15) days of the date
of this Advice pursuant to 51 Pa. Code 513.2(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 fifteen
(15) days may result in the dismissal of the appeal.
Vincent Dopko
Chief Counsel