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HomeMy WebLinkAbout00-592 GravesPatricia C. Graves 5500 Partridge Ct. Harrisburg, PA 17111 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 18, 2000 00 -592 Re: Former Public Employee; Section 1103(g); Annuitant Hearing Officer; Department of Public Welfare; First Health Services Corporation. Dear Ms. Graves: This responds to your letter of June 20, 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 an Annuitant Hearing Officer following termination of service with the Commonwealth of Pennsylvania, Department of Public Welfare ("DPW"). Facts: You have retired from the DPW but worked as an Annuitant Hearing Officer with your most recent assignment at the Bureau of Hearings and Appeals having ended on May 11, 2000. Throughout your thirty -one years of Commonwealth service, you have held various positions with the DPW. You have submitted a copy of your resume which is incorporated herein by reference. You state that you wish to accept a position with First Health Services Corporation, a firm, which is bidding on a contract requested by the DPW to enroll Public Welfare recipients in appropriate HMOs in the Central Pennsylvania region. You have submitted a copy of the description of the job you wish to accept which is incorporated herein by reference. Your duties in this new position would include, but would not be limited to managing the day - to-day operations of the Health Choices Enrollment Broker Services Program, establishing and maintaining a positive and productive relationship with the DPW, and identifying new business opportunities which can be developed by First Health Services Corporation. You ask the State Ethics Commission to provide you with an opinion concerning the legality of you accepting employment, if offered, with First Health Services Corporation. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Graves, 00 -592 July 18, 2000 Page 2 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 an Annuitant Hearing Officer for the Department of Public Welfare, 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 1103(g) of the Ethics Act. It is noted that in June, 1997 you retired from the DPW Dauphin County Assistance Office but returned to work with the DPW in the fiscal year 1997 -1998. You continued employment with the DPW Bureau of Hearings and Appeals as an Annuitant Hearing Officer in fiscal years 1998- 1999 and 1999 -2000. You completed your latest assignment for the DPW Bureau of Hearings and Appeals on May 11, 2000. As to your subsequent retum to work for the DPW in the aforementioned fiscal years, you once again became a public employee. Upon termination of your service on May 11, 2000, you once again became a former public employee. See, McGlathery, Opinion No. 00 -004. While Section 1103(g) does not prohibit a former public officiaUpublic employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before "the govemmental body with which he has been associated ": § 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 employee is or has been associated" are specifically defined in the Ethics Act as follows: § 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. Graves, 00 -592 July 18, 2000 Page 3 "Governmental body with which a public official or public employee is or has been associated." The governmental body within State overnment 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 govemmental 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 empl mhiinself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to p rohibit acting on behalf of any person in any 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 govemmental 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 govemmental 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 ublic 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 1103(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/ppublic employee had influence or control but extends to the entire body. See, Legislative ShaatiivO Journal n l of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinio n Opinion governmental body with which you were associated upon termination of public service is the DPW in its entirety. Therefore, for the first year after termination of Graves, 00 -592 July 18, 2000 Page 4 service with the DPW, Section 1103(q) of the Ethics Act would apply and restrict "representation" of "persons" before the DPW. Having set forth all of the above restrictions, it is clear that although the Ethics Act would not preclude you from accepting a position with First Health Services Corporation, it would restrict your conduct in your new position to the extent that such conduct would constitute representation before the DPW. As a practical matter, it would appear to be impossible for you to perform the functions of the proposed position without transgressing Section 1103(g), given that one of your job duties is to "establish and maintain a positive and productive relationship with the Department ... " 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 judgement 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 an Annuitant Hearing Officer with the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW'), 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 the DPW, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the DPW in its entirety. 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 conduct in any other civil or criminal proceeding, provided the requestor has disclosed truthfully all the material facts and committed the acts complaint of in reliance on the Advice given. The 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 Graves, 00 -592 July 18, 2000 Page 5 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. Si cerely, Vincent J. i opk Chief Counsel