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HomeMy WebLinkAbout94-615 WilliardMargaret A. Williard 1565 Old Mountain Road Wellsville, PA 17365 Re: Former Public Employee; Section 3(g); Director, Division of Capitation Policy and Program Development, DPW. Dear Ms. Williard: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 29, 1994 94 -615 This responds to your letter of September 15, 1994, 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 Division of Capitation Policy and Program Development following termination of service with the Commonwealth of Pennsylvania, Department of Public Welfare. Facts: As Director of the Division of Capitation Policy and Program Development within the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW ") you request an advisory from the State Ethics Commission. You will be leaving your present position with DPW to join Keystone Health Plan Central effective close of business September 16, 1994. Your duties with DPW consist of contracting with managed care organizations throughout the state to provide prepaid capitated health care to medical assistance recipients. You have submitted a copy of your most current job description, which document is incorporated herein by reference. Having reviewed the Ethics Law, you state your assumption that you will not be permitted to contact the Office of Medical Assistance on behalf of Keystone Health Plan Central for a period of one year, but you indicate that you are not sure what restrictions may apply to the rest of DPW. Regarding your interaction with the Office of Medical Assistance, you state your assumption that your attendance at public meetings is permitted, as long as you do not participate on behalf of Keystone Health Plan Central. You seek an advisory as to whether your interpretation is correct. Williard, Margaret A., 94 -615 September 29, 1994 Page 2 Discussion: As the Director of the Division of Capitation Policy and Program Development within the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), you are to 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. §402; 51 Pa. Code 511.1. 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 would become 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 DPW 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 Williard, Margaret A., 94 -615 September 29, 1994 Page 3 must conclude that the governmental body with which you have been associated upon termination of public service would be DPW, including but not limited to the Division of Capitation Policy and Program Development and the Office of Medical Assistance. 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 DPW, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW in its entirety, including but not limited to the Division of Capitation Policy and Program Development and the Office of Medical Assistance. 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..." Leaislative 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. §1901, it is clear that the governmental body with which you have been associated is DPW, including but not limited to the Division of Capitation Policy and Program Development and the Office of Medical Assistance. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before Williard, Margaret A., 94 -615 September 29, 1994 Page 4 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. 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, Williard, Margaret A., 94 -615 September 29, 1994 Page 5 document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shav, 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 DPW. However, you may not be identified on documents submitted to DPW. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW 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. Similarly, in response to your specific inquiry, the prohibitions of Section 3(g) would not preclude your attendance at public meetings of the Office of Medical Assistance, as long as you do not participate on behalf of Keystone Health Plan Central and /or otherwise indicate your employment or association with that entity. 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. Furthermore, 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 Williard, Margaret A., 94 -615 September 29, 1994 Page 6 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. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As the Director of the Division of Capitation Policy and Program Development for the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "), you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is DPW in its entirety, including but not limited to the Division of Capitation Policy and Program Development and the Office of Medical Assistance. 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 requester 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 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 Fa. Code 513.2(h). The appeal may Williard, Margaret A., 94 -615 September 29, 1994 Page 7 be received at the Commission by hand delivery, United States mail, delivery service, or by ?AI 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. erely, cent ., 1 Do¢ko Chief Counsel