HomeMy WebLinkAbout98-529 SaltRoxanne C. Salt, R.N.
115 Foxwood Dr.
Wexford, PA 15090
Dear Ms. Salt:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 17, 1998
98 -529
Re: Former Public Employee; Section 3(g); Health Facility Quality Examiner 1;
Department of Health.
This responds to your letters of February 2, 1998 and February 10, 1998 by
which you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
restrictions upon employment of a Health Facility Quality Examiner 1 following
termination of service with the Commonwealth of Pennsylvania, Department of Health.
Facts: On January 30, 1997, you resigned your position as a Health Facility
Quality Examiner 1 (HFQE1) with the Commonwealth of Pennsylvania, Department of
Health. Your duties as an HFQE1 included conducting: initial Medicare surveys, resurveys
and complaint investigations of Medicare certified home health agencies, dialysis Clinics,
outpatient physical therapy and physical therapists in independent practice,
comprehensive outpatient rehab facilities and hospices; and surveys, resurveys and
complaint investigations of state licensed home health and birthing centers.
You are presently planning to set up a consulting business relating to Home Health
Agencies. You would provide consulting services and Mock Surveys, using the
knowledge you acquired as an HFQE1.
You request advice on any restrictions the Ethics Law might impose upon you
with regard to setting up the above - mentioned consulting business. You specifically
inquire as to whether your position with the Department of Health would bring you
within the parameters of the two -year restriction that applies to executive -level state
employees at Section 3(i) of the Ethics Law, 65 P.S. §403(i).
You have submitted a copy of your most recent job description as an HFQE1,
which job description is incorporated herein by reference.
Discussion: In the former capacity as a Health Care Facility Quality Examiner 1
(HFQE1) for the Commonwealth of Pennsylvania, Department of Health, you would be
considered a "public employee" subject to the Public Official and Employe Ethics Law
( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402;
Salt, 98 -529
March 17, 1998
Page 2
51 Pa. Code § 1 1.1. 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 one or more of the
following: 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.
However, based upon your duties and responsibilities as an HFQE1, you would
not be considered an "executive level state employee." Consequently, upon termination
of public service, you became a "former public employee" subject to Section 3(g) — but
not Section 3(i) — of the Public Official and Employe Ethics Law.
While Section 3(g) does not prohibit a former public official /public employee from
accepting a position of employment, it does restrict the former public official /public
employee with regard to "representing" a "person" before "the governmental body with
which he has been associated ":
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 aovernmental body with which he
has been associated for one year after he leaves that body.
65 P.S. §403(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Law as follows:
65 P.S. §402.
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.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee,
club or other organization or group of persons.
"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.
Salt, 98 -529
March 17, 1998
Page 3
The term "Person" is very broadly defined. It includes the former public employee
himself, Confidential Opinion 93 -005, as well as a new governmental employer.
Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (2) attempts to influence;
(3) submission of bid or contract proposals which are signed by or contain the name of
the former public official /public employee; (4) participating in any matters before the
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
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)
also generally prohibits 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 that existed prior to termination of public
service, Shay, Opinion 91 -012. However, if such a pre- existing contract does not
involve 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.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Law would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to the
general public, but 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.
Section 3(g) only restricts the former public official /public employee with regard
to representation before his former governmental body. The former public official /public
employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public official /public employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official /public employee had influence or control but
extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at
290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you have been associated upon termination
of public service is the Department of Health in its entirety. Therefore, for the first year
after termination of your service with the Department of Health, Section 3(g) of the
Ethics Law would apply and restrict "representation" of "persons" before the
Department of Health. However, it is noted that the one -year period of applicability of
Section 3(g) has already expired, since you resigned as an HFQE1 on January 30, 1997.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 3(g) only. It is expressly assumed that there has been no use of
authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the
Ethics Law. Further, you are advised that Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public official /public employee and no
Salt, 98 -529
March 17, 1998
Page 4
public official /public employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public
official /public 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 Law 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: In the former capacity as a Health Facility Quality Examiner 1 with
the Commonwealth of Pennsylvania, Department of Health, you would be considered a
"public employee" as defined in the Ethics Law. Upon termination of service with the
Department of Health, you became a "former public employee" subject to Section 3(g)
of the Ethics Law. The former governmental body is the Department of Health. The
restrictions as to representation outlined above would apply during the first year
following termination of service, which year has already passed. 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 would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after 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.
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.
cerely,
Vincent J. pko -
Chief Counsel