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HomeMy WebLinkAbout98-587 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL August 18, 1998 FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec @state.pa.us 98 -587 Re: Former Public Employee; Section 3(g); County B; Mental Health and Mental Retardation Administrator (MH /MR Administrator); Provider Agency. This responds to your letter of July 31, 1998 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the. Public Official and Employee Ethics Law presents any restrictions upon employment of a county mental health and mental retardation administrator following termination of service with the county, particularly with regard to prospective employment with a provider agency that contracts with the county. Facts: You request an advisory from the State Ethics Commission on behalf of Mr. A, who is currently employed by County B ( "the County ") as the Mental Health and Mental Retardation Administrator ( "MH /MR Administrator ") for the County B Mental Health and Mental Retardation Program ( "MH /MR Program "). You have submitted lengthy and detailed facts which may be fairly summarized as follows. Mr. A was appointed MH /MR Administrator by the County B Commissioners pursuant to the Mental Health and Mental Retardation Act of 1966 ( "MH /MR Act "), 50 P.S. §4304. You acknowledge that in this position, Mr. A is a public official /public employee subject to the Ethics Law. Mr. A's responsibilities as the County MH /MR Administrator include overall responsibility for contracting, procurement, and the administration and monitoring of grants and the variety of provider relationships as to MH /MR services. You further acknowledge that following termination of employment with the County, Mr. A would be subject to Section 3(g) of the Ethics Law, 65 P.S. §403(g), which restricts a former public official /public employee from representing "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." !d. Mr. A plans to terminate his employment with County B to accept a position of employment as the Chief Executive Officer of Corporation C and /or its affiliated agency, Corporation D, collectively referred to herein as the "New Employer." Mr. A has accepted the executive position with the New Employer, contingent upon the receipt of a favorable advisory from the State Ethics Commission. You have submitted copies of the following documents, which documents are incorporated herein by reference: 1) a position description that was used by the New Employer to Confidential Advice, 98 -587 August 18, 1998 Page 2 recruit candidates for the position; and 2) a proposed table of organization for the New Employer. The New Employer is a large human services provider agency which is recognized as a nonprofit charitable organization under Section 501(c) (3) of the Internal Revenue Code. The New Employer contracts with county mental health and mental retardation programs pursuant to applicable MH /MR Act contract Regulations. In his prospective position as Chief Executive Officer of the New Employer, many of the programs over which Mr. A would have operational oversight responsibility would have contracts with various county and state agencies, including the Pennsylvania Department of Public Welfare and County B. However, you assure the Commission that during the first year, Mr. A would not represent the aforesaid New Employer before County B either generally or in terms of its mental health, mental retardation and children and youth programs. You specifically state that during his first year with the New Employer, Mr. A would decline all personal appearances; would not appear at any public meetings as a representative of the New Employer where such meetings would be convened by, or would reasonably be expected to draw the attention of, County B, or where there could be any perception or conclusion that he would be representing the New Employer before County B; would not participate in negotiations with County B; would not lobby on behalf of the New Employer before County B; and would not execute any contracts, sign any correspondence, or otherwise present himself as representing the New Employer in any written form to County B. Although Mr. A would negotiate contracts with other counties as well as various state agencies, and would appear on behalf of the New Employer in those contexts, you state that any and all contact with County B, either in terms of contract negotiation, general discussion, appearances at public meetings, or written communication of any sort would be conducted by other senior officials for the New Employer. You represent and assure the Commission. that Mr. A would have no "public presence" in terms of representing the New. Employer in any fashion as to County B for at least a period of one year. You state, however, that Mr. A would have oversight and management responsibility as to services to children provided under contracts with County B and other counties after such contracts would be entered into. You state your understanding that such would be a permitted activity. Based upon all of the above, you request an advisory as to whether Mr. A may assume the position of Chief Executive Officer for the New Employer as described above, as long as he does not indirectly or directly represent the New Employer before County B for a period of one year following termination of public service. Discussion: As the Mental Health and Mental Retardation Administrator for the County B Mental Health and Mental Retardation Program, Mr. A would be considered a public official /public employee subject to the Public Official and Employee Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa. Code §11.1. This conclusion is based upon the submitted duties of the appointed position, which when reviewed on an objective basis, indicate 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. Confidential Advice, 98 -587 August 18, 1998 Page 3 Consequently, upon termination of public service, Mr. A would become a former public official /public employee and would be subject to Section 3(g) of the Public Official and Employee 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 governmental 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: 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. 65 P.S. §402. The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also 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 Confidential Advice, 98 -587 August 18, 1998 Page 4 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 New Employer to which the billing is being submitted. Abrams/Webster, Opinion 95- 011 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 agency. 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 Mr. A would be associated upon termination of public service is County B in its entirety. Therefore, for the first year after termination of Mr. A's service with the County B MH /MR Program, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before County B. Conditioned upon the assumption that Mr. A would conduct himself in conformity with the above restrictions of Section 3(g) during its one -year period of applicability, Section 3(g) of the Ethics Law would not preclude Mr. A 's acceptance of the proposed employment as Chief Executive Officer of Corporation C and /or its affiliated agency, Corporation D. 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 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 Confidential Advice, 98 -587 August 18, 1998 Page 5 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 County Code or the MH /MR Act. Conclusion: As the Mental Health and Mental Retardation Administrator for the County B Mental Health and Mental Retardation Program, Mr. A would be considered a public official /public employee subject to the Public Official and Employee Ethics Law ( "Ethics Law "). Upon termination of service with County B, Mr. A would become a former public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body would be County B. The restrictions as to representation outlined above must be followed. Conditioned upon the assumption that Mr. A would conduct himself in conformity with the above restrictions of Section 3(g) during its one -year period of applicability, Section 3(g) of the Ethics Law would not preclude Mr. A 's acceptance of the proposed employment as Chief Executive Officer of Corporation C and /or its affiliated agency, Corporation D. 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. +opko Chief Counsel