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