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HomeMy WebLinkAbout00-532 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 March 2, 2000 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us 00 -532 Re: Former Public Employee; Section 1 103(g); Public Health Dentist; Pennsylvania Health Department; Lancaster Community Health Plan; Ludwig, Advice 00 -509. Dear Dr. Ludwig: This responds to your letter of January 31, 2000 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 employment of a Public Health Dentist as a consultant to a grant recipient following termination of service with the Pennsylvania Department of Health. Facts: By letter dated December 27, 1999 you initially sought an advisory from the State Ethics Commission as to whether the Ethics Act would present any restrictions upon a you as a former Public Health Dentist following temination of your 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 you were a member. In response to your letter, Ludwig, Advice 00 -509, was issued to you on January 27, 1999, which Advice is incorporated herein by reference. You now submit the following facts. On May 2, 1994, you began your employment as the Public Health Dentist for the Pennsylvania Health Department, and on December 3, 1999, you retired from that position. Several months before your retirement, the Health Department instructed you to draft a Request for Application ( "RFA "). The final version of the RFA was published in the Pennsylvania Bulletin on October 23, 1999. You have submitted a copy of the RFA, which is incorporated herein by reference. The purpose of the RFA was to request individuals and non - profit organizations to submit a plan for the performance of a survey leading to the designation of a dental health professional shortage area ( "DHPSA ") in the Commonwealth. The DHPSA designation would be based upon a geographic area where dental capacity was lacking or upon a low- income population that was experiencing difficulty in accessing dental care services. Plans had to be submitted by December 8, 1999. Applicants who Ludwig , 00 -532 March 2, 2000 Page 2 would submit plans demonstrating the requisite knowledge to perform such a survey would receive a grant of up to $5,000 to perform the survey. One of the grant recipients was the Lancaster Community Health Plan ( "LCHP "). LCHP has asked you to provide consulting services in connection with their activities involving the survey. You believe that you would be permitted to serve as a consultant to LCHP because you took no part in the grant award process due to your retirement prior to the evaluation of RFA applications. You ask whether your conclusion is accurate. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(1 1) of the Ethics Act, 65 Pa.C.S. §§1107(10), (11), 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), (1 1). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As noted in Ludwig, Advice 00 -509, in the former capacity as Public Health Dentist for Pennsylvania Department of Health, 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. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1 103(g) of the Ethics Act. In that Ludwig, Advice 00 -509 is incorporated herein by reference, the quotations and commentary as to the Ethics Act will not be repeated. As noted in Ludwig, supra, the governmental bodies with which you have been associated upon termination of public service are the Pennsylvania Health Department in its entirety and the Department of State. Therefore, for the first year after termination from Commonwealth service, Section 1103(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 the Ethics Act would not prohibit you from accepting employment as a consultant for LCHP, provided that in performing such services, no prohibited contacts would occur as to the Pennsylvania Health Department and the Department of State and no written materials containing your name would be submitted to either of the foregoing governmental bodies, except within the narrow and limited extent permitted by Abrams /Webster, Opinion 95 -01 1 as set forth in Ludwig, Advice 00 -509. Conditioned upon the assumptions that your proposed activities would not involve representation before the Pennsylvania Health Department and the Department of State in any way, and that you would be able to perform such duties within the restrictions of 1 103(g) as set forth in Ludwig, supra, the Ethics Act would not prohibit the proposed conduct. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 1 103(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 Ludwig, 00 -532 March 2, 2000 Page 3 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 Department of Health, 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 Department of Health, you became a "former public employee" subject to Section 1 103(g) of the Ethics Act. The former governmental bodies are the Pennsylvania Department of Health and the Department of State. The restrictions as to representation outlined in Ludwig, Advice 00 -509 and 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 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. cerely, wucAA Vincent J. opko Chief Counsel