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HomeMy WebLinkAbout97-507 CollinsDarlene C. Collins 5060 Wolf Run Drive Erie, PA 16505 Dear Ms. Collins: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 17, 1997 97 -507 Re: Former Public Employee; Section 3(g); Executive -Level State Employee; Section 3(i); Deputy Secretary for Medical Assistance Programs; Department of Public Welfare. This responds to your letter of December 16, 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 a Deputy Secretary for Medical Assistance Programs following termination of service with the Department of Public Welfare. Facts: You served as the Deputy Secretary for Medical Assistance Programs with the Department of Public Welfare (DPW) from June 19, 1995 until your resignation on December 13, 1996. In that position you acted as the Medicaid Director of the Office of Medical Assistance Programs and had senior executive responsibility for policy and program administration associated with comprehensive fee - for - service and managed health care programs. You also served as a member of various related state committees and work groups. You were a member of the Cabinet Steering Committee for Health Choices and Medicaid Managed Care which provided broad direction on Commonwealth Medicaid policy related to Medicaid managed care. The Cabinet Steering Committee also was asked for concurrences on issues having significant interdepartmental impact requiring shift or allocation of Commonwealth resources. Other members of this Cabinet Steering Committee included the Secretaries of Administration, Aging, Budget, Health, Insurance, and Public Welfare, the General Counsel, and representatives of the Governor's Policy Office, the Office of the Budget, and the Comptroller's Office. Additionally, you served as Chair of the State Interagency Steering Committee on Statewide Managed Care. This was a working committee which conducted programmatic, legislative and policy reviews of Medicaid reform and Medicaid managed care issues and which referred significant issues and proposed solutions for further Collins, 97 -507 January 17, 1997 Page 2 action to the Cabinet Secretaries and the Cabinet Steering Committee for Health Choices and Medicaid Managed Care for further consideration and action. You also served as State Co -Chair of the Purchasers Committee of the Intra- Governmental Council on Long Term Care. This Committee, along with two others (Consumers and Providers), reviewed reports issued through the Department of Aging and developed specific recommendations for the Intra - Governmental Council to consider and submit for development of the FY 97 -98 state budget. You resigned as Deputy Secretary for Medical Assistance Programs as well as from all related committees and work groups effective December 13, 1996 in order to begin new employment with Birch & Davis Health Management Corporation, Inc. (BDHMC) effective February 1, 1997. BDHMC has headquarters at 8905 Fairview Road, Silver Spring, Maryland and provides health care management and consulting services to clientele including HMOs and PPOs, physician practices, hospitals, health insurance companies, and governmental agencies. You will be a principal of BDHMC with responsibility for business development in several states, including Pennsylvania. Approximately 30% of your activities will involve Pennsylvania, the balance of your work will relate to other states. You state that, with respect to your business development activities in Pennsylvania during your first year of employment with BDHMC, you intend to advise BDHMC as to relevant Pennsylvania regulations and the state governmental organizational structure inclusive of identifying principal contacts within state program offices and agencies. During your first full year of employment with BDHMC, you state that you will not engage in any lobbying activity with the Commonwealth of Pennsylvania nor will you have any direct contact with any public officials /public employees working for DPW with respect to contracting, procurement or the administration or monitoring of grants or subsidies. You further state that you will not attend any hearings or meetings of DPW and will not engage in any negotiations related to bids or contract proposals submitted by BDHMC to DPW and will not permit your name to be signed or contained on any such BDHMC bids or contract proposals. To the best of your knowledge, based upon representations by BDHMC, BDHMC does not have any existing contracts with the Commonwealth of Pennsylvania or any of its Departments, including DPW. You state that as Deputy Secretary for Medical Assistance Programs, you did not actively participate in recruiting BDHMC to conduct business in Pennsylvania, to open a new facility or branch in Pennsylvania or to expand an existing Pennsylvania facility or branch. You did not authorize or promise any loans or grants to BDHMC as an inducement for BDHMC either to conduct business in Pennsylvania or to expand the scope of any existing business in Pennsylvania. Further, based upon representations by BDHMC, BDHMC has not received any grants or loans of money from the Commonwealth of Pennsylvania, or any promises or such grants or loans, as an inducement to conduct business in Pennsylvania or to expand the scope of any existing business in Pennsylvania. Collins, 97 -507 January 17, 1997 Page 3 Based upon the facts which you have submitted, you are requesting an advisory as to the following specific questions: 1. Will any and all of the anticipated scope of your work with BDHMC constitute a "restricted activity" in violation of Section 3(g) of the Ethics Law? 2. Will any and all of the anticipated scope of your work with BDHMC constitute a "restricted activity" in violation of Section 3(i) of the Ethics Law? 3. Will Section 3(g) preclude you from "representing" BDHMC before any "governmental body" other than DPW, within the meaning of Section 3(g) and, if so, identify each other governmental body before which you cannot represent BDHMC during the one year period. It is noted that a copy of your job description and job classification specifications have been obtained, which documents are incorporated herein by reference. Discussion: In your former capacity as Deputy Secretary for Medical Assistance Programs with the Department of Public Welfare (DPW), you would be considered a public official /public employee and an "executive -level state employee" within the definition of these terms 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. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. Collins, 97 -507 January 17, 1997 Page 4 "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. 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 anything of monetary value 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. 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. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Collins, 97 -507 January 17, 1997 Page 5 Under Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In applying Section 3(a) of the Ethics Law to the proffered facts, Section 3(a) would prohibit you from using the position or emoluments of your public position or confidential information to advance an opportunity of private employment with BDHMC. Once again, it is not suggested that you have engaged in such conduct and the foregoing is provided to give a complete response to your inquiry. As for Section 3(i) of the Ethics Law, you would be subject to that provision of law since you would be a former executive -level state employee. However, Section 3(i) would not restrict you from the position of employment with BDHMC provided and conditioned upon the assumptions that you did not actively participate in recruiting BDHMC to Pennsylvania, and that you did not actively participate in recruiting or inducing BDHMC to open or expand a facility or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to BDHMC. Based upon the factual representations in your letter that the above did not occur, Section 3(i) would not prohibit your employment with BDHMC. Upon termination of public service, you also became a "former" public official /public employee subject to Section 3(g) of the Public Official and Employee Ethics Law. To answer your request with respect to Section 3(g), the governmental body with which you were 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. 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 Collins, 97 -507 January 17, 1997 Page 6 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. 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 together with the Cabinet Steering Committee, State Interagency Steering Committee, Intra- Governmental Council on Long Term Care, all hereinafter collectively referred to as "the Agencies." 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 the former governmental body, specifically the Agencies. 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 Collins, 97 -507 January 17, 1997 Page 7 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. 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 The Agencies. However, you may not be identified on documents submitted to The Agencies. You may also counsel any person regarding that person's appearance before The Agencies. Once again, however, the activity in this respect should not be revealed to The Agencies. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of The Agencies 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: Collins, 97 -507 January 17, 1997 Page 8 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. As to the three questions you pose, Section 3(i) would not restrict /prohibit your employment with BDHMC based upon the factual representations you have made. Regarding Section 3(g), you would not have a problem under this Sections since you have stated that you would limit your conduct so that you would take no action which would constitute representation. As to your last question concerning your governmental body, that also has been addressed above to include DPW and also the various Committees /Councils on which you served. 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: In your former capacity as Deputy Secretary for Medical Assistance Programs with the Department of Public Welfare (DPW), you would be considered a public official /public employee and an executive -level state employee subject to the provisions of the Ethics Law. Under Section 3(i) of the Ethics Law, you would not be prohibited from accepting a position of employment with BDHMC based upon the assumptions that you did not actively participate in recruiting BDHMC to Pennsylvania, and that you did not actively participate in recruiting or inducing BDHMC to open or expand a facility or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Upon termination of service with DPW, you became a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is DPW in its entirety, together with the Cabinet Steering Committee, State Interagency Steering Committee, and Intra - Governmental Council on Long Term Care. 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. Collins, 97 -507 January 17, 1997 Page 9 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. 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. S incerely, \ffncent J. Dopko Chief Counsel