Loading...
HomeMy WebLinkAbout96-612 ErneyJoan L. Erney Department of Public Welfare Office of Mental Health PO Box 2675 Harrisburg, PA 17105 -2675 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 4, 1996 96 -612 Re: Former Public Employee; Section 3(g); Department of Public Welfare, Office of Mental Health, Executive Assistant to Deputy Secretary. Dear Ms. Erney: This responds to your letter of October 31, 1996 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 an Executive Assistant to the Deputy Secretary of the Office of Mental Health following termination of service with the Department of Public Welfare. Facts: You have served as the Executive Assistant to Deputy Secretary Charles Curie in the Office of Mental Health (OMH), Department of Public Welfare (DPW). You have resigned that position effective November 29, 1996. As of December 1, 1996, you have assumed the position of Chief Operating Officer at Community Behavioral HealthCare Network of Pennsylvania (CBHNP). CBHNP is a new provider organization established to do managed care contracting in both the commercial and public sectors, including 104 community mental health, mental retardation and drug and alcohol agencies across Pennsylvania. CBHNP has submitted an application to the Departments of Insurance and Health for licensure as a risk bearing PPO. Your position at CBHNP is to prepare the providers for managed care business as well as oversee the operations of the company. You are a licensed attorney, however you state that you do not anticipate representing CBHNP in that capacity. As Executive Assistant in the OMH, you have been a member of the OMH Executive Staff. You state that you have acted on behalf of the Deputy in many arenas including upper level DPW executive meetings and in presentations to the community. You have been actively involved with the behavioral health managed care project and have assisted the OMH project manager in developing the HealthChoices Ernev, 96 -612 December 4, 1996 Page 2 behavioral health RFP and the federal waiver application. You state that you have acted as a contact person for other program offices including the Office of Children, Youth and Families and the Office of Mental Retardation; however, you have not had any operational responsibility or decision making authority for any program office outside of the OMH. Copies of your job description, classification specifications, and organizational chart have been obtained and are incorporated herein by reference. You seek an advisory as to the restrictions of the Ethics Law which apply to former public officials /public employees during the one year period following termination of their public service. You pose the following specific inquiries: 1. You ask whether you are precluded from representing CBHNP for one year in matters dealing with the OMH or whether the prohibition includes all offices within DPW. 2. You ask whether you are precluded from representing CBHNP in matters dealing with the Department of Insurance or Health, such as, for example, in meeting with the Departments of Insurance and Health related to the licensure application that has been submitted by CBHNP. 3. You ask whether you can participate in meetings that OMH convenes to develop policies and /or procedures for mental health or drug and alcohol services, and whether you are prohibited from attending public meetings or workgroups which are convened by any program office within DPW, such as the Medical Assistance Advisory Committee or an Office of Children, Youth and Families workgroup on managed care. 4. You ask whether you can represent CBHNP at non - adversarial public hearings (not constituting litigation) hosted by OMH /DPW, such as public hearings hosted by the Office of Medical Assistance regarding statewide expansion of Medicaid managed care. 5. You ask whether your employment at CBHNP affects the ability of any other executive staff of CBHNP from representing CBHNP in matters dealing with OMH /DPW, and whether CBHNP would be prohibited from submitting a response to an RFP issued by either OMH /DPW. Discussion: It is initially noted that you have requested advice under a specific provision of the Ethics Law, Section 3(g). This advice is limited to addressing that specific section. It is also initially noted that you are a lawyer, and that Section 3(g) does not apply to restrict a lawyer insofar as his conduct constitutes the practice of law. Spataro, Opinion 89 -009. To the extent his conduct does not constitute the practice of law, however, the restrictions do apply to restrict a former public official /public employee even though he is a lawyer. In your former capacity as an Executive Assistant to the Deputy Secretary in the OMH of DPW, 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. §402; 51 Pa.Code § 1 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, Ernev, 96 -612 December 4, 1996 Page 3 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 rninimis 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 were associated while working with the OMH 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. 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. Erney, 96 -612 December 4, 1996 Page 4 The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. Based upon the above, the governmental body with which you were associated upon termination of public service would be DPW in its entirety, including but not limited to the OMH. 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 OMH, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW 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, 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: 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; 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. 2. Attempts to influence; Ernev, 96 -612 December 4, 1996 Page 5 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. Section 3(g) would also prohibit in general 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 pertain to a contract which existed prior to termination of public service. Shay, Opinion 91 -012. However, in the event of work performed on a contract already awarded and not involving the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95 -01 1. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities 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. 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. Turning to your specific inquiries, in response to your first specific inquiry, as noted above, the restrictions of Section 3(g) apply as to representation before DPW in its entirety, including but not limited to the OMH. Ernev, 96 -612 December 4, 1996 Page 6 As for your second specific inquiry, as noted above, the restrictions of Section 3(g) are applicable as to your former governmental body, DPW, and do not apply to restrict you in your conduct before other governmental bodies. As for your third specific inquiry, you may not engage in any participation at meetings, public or otherwise, which would constitute prohibited representation before your former governmental body. However, mere attendance at a public meeting in your capacity as a member of the general public, where you would conduct yourself as a member of the general public and would not engage in conduct constituting representation of your new employer, would not contravene Section 3(g). As for your fourth specific inquiry, representation of CBHNP before your former governmental body in any matter (other than as a lawyer engaged in the practice of law) would be prohibited. As for your fifth specific inquiry, you are advised that the restrictions of Section 3(g) apply to restrict you as a former public employee, and do not apply to restrict CBHNP itself or others employed by it who are not themselves subject to Section 3(g). 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 Governor's Code of Conduct. Conclusion: In your former capacity as Executive Assistant to the Deputy Secretary of the Office of Mental Health (OMH) in the Department of Public Welfare (DPW), you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the OMH, you became 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 OMH. 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. 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. Ernev, 96 -612 December 4, 1996 Page 7 Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa.Code § 13.2(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 thirty (30) days may result in the dismissal of the appeal. Vincent J. Do ko Chief Counsel