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HomeMy WebLinkAbout00-509 LudwigCharles M. Ludwig, DDS, FACD 562 West Third Avenue Lititz, PA 17543 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 27, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethicsriistate.pa.us 00 -509 Re: Former Public Employee; Section 1103(g); Public Health Dentist; Pennsylvania Health Department; IRRC. Dear Dr. Ludwig: This responds to your letter of December 27, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon a former Public Health Dentist following termination of service with the Pennsylvania Health Department as to submitting comments to the Independent Regulatory Review Commission and the House and Senate Committees regarding certain regulations which were subject to discussions and votes of the Pennsylvania State Board of Dentistry, of which the Public Health Dentist was a member. Facts: On May 2, 1994, you began your employment as the Public Health Dentist for the Pennsylvania Health Department. The Secretary of Health designated you to serve as a member of the Pennsylvania State Board of Dentistry (Board) from 1994 to December 3, 1999. On December 3, 1999, you retired from the position of Public Health Dentist. In 1994, the Dental Law was amended to create a new category of dental assistants known as the "expanded function dental assistant" (EFDA). In October 1999, the Board submitted its final regulations regarding EFDA's for legal review, and review by the Independent Regulatory Review Commission (IRRC) and the appropriate House and Senate Committees. All of the discussions and votes regarding the EFDA regulations took place in public meetings of the Board. You disagreed with two parts of the regulations, but the Board voted in favor of them. Your disagreements are based upon your belief that the regulations do not conform to the Dental Law and Regulations currently in existence. You state that you are subject to the provisions of the Ethics Act. You ask for an advisory as to whether, as a private citizen, you may write to the IRRC and the appropriate House and Senate Committees to voice your opinion as to the non- conformance of the EFDA regulations to the Dental Law and the current Regulations. Ludwig, 00 -509 January 27, 2000 Page 2 Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§1107(10), (1 1), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the former capacity as Public Health Dentist for Pennsylvania Health Department, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 51 Pa.Code §11.1. 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. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1 103(g) of the Ethics Act. While Section 1103(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 1103. Restricted activities. (g) Former official or employee. - -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 Pa.C.S. §1103(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 Act as follows: Section 1102. 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. Ludwia, 00 -509 January 27, 2000 Page 3 "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 Pa.C.S. §1102. 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 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 1103(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 -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 Act 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 1 103(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. Ludwig, 00 -509 January 27, 2000 Page 4 The governmental body with which you have been associated upon termination of public service is the Pennsylvania Health Department in its entirety and the Department of State. Therefore, for the first year after termination from Commonwealth service, Section 1 103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Pennsylvania Health Department and the Department of State. As for the question you pose, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from reviewing and submitting comments regarding the EFDA regulations to the IRRC and the House and Senate Committees because the IRRC and the General Assembly are not your former governmental bodies. Further, you could submit comments to the State Board of Dentistry or Health Department based upon the factual assumption that you would not be doing so for compensation. Without such representation for compensation, Section 1103(g) would not have application. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(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 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act 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 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 Act; 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 Act. Conclusion: In the former capacity as a Public Health Dentist with the Pennsylvania Health Department, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with Pennsylvania Health Department, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Pennsylvania Health Department and the Department of State. Section 1 103(g) of the Ethics Act would not prohibit you from reviewing and submitting comments regarding the EFDA regulations to the IRRC and the House and Senate Committees because the IRRC and the General Assembly are not your former governmental bodies. Further, you could submit comments to the State Board of Dentistry or Health Department based upon the factual assumption that you would not be doing so for compensation. Without such representation for compensation, Section 1103(g) would not have application. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act 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 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith Ludwig, 00 -509 January 27, 2000 Page 5 conduct in any other civil or criminal proceeding, provided 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. erely, cent n Dopko Chief Counsel