HomeMy WebLinkAbout00-009 GravesPatricia C. Graves
5500 Partridge Ct.
Harrisburg, PA 17111
Dear Ms. Graves:
I. ISSUE:
OPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Julius Uehlein
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: September 21, 2000
DATE MAILED: October 5, 2000
00 -009
Re: Former Public Employee; Section 1103(g); Annuitant Hearing Officer;
Department of Public Welfare; First Health Services Corporation; 95 -Day Appeal
Program; Appeal of Advice.
This Opinion is issued in response to the appeal of Advice of Counsel 00 -592
which was issued on July 18, 2000.
Whether the Public Official and Employee Ethics Act presents any restrictions
upon the employment of an Annuitant Hearing Officer following termination of service
with the Commonwealth of Pennsylvania, Department of Public Welfare.
II. FACTUAL BASIS FOR DETERMINATION:
By letter dated August 15, 2000, and received on August 17, 2000, you appealed
Advice of Counsel 00 -592 issued on July 18, 2000. The appeal of Advice did not
delineate the nature of your objection of the Advice of Counsel, but merely indicated
your desire to appeal.
In your initial advisory request letter dated June 20, 2000, you presented the
following facts. Before retiring on May 11, 2000, you worked as an Annuitant Hearing
Officer for the Department of Public Welfare ( "DPW "). Your most recent assignment at
DPW was with the Bureau of Hearings and Appeals. You have held various positions at
DPW during your thirty -one years of Commonwealth service, as reflected by a copy of
your resume, which is incorporated herein by reference.
Graves, 00 -009
October 5, 2000
Page 2
You wish to accept a position with First Health Services Corporation. Per DPW's
request for bids, First Health Services Corporation is bidding on a contract to enroll
public welfare recipients in appropriate HMOs in the Central Pennsylvania region. In
your new position with First Health Services Corporation, some of your duties would
include managing the day -to -day operations of the Health Choices Enrollment Broker
Services Program, establishing and maintaining a positive and productive relationship
with DPW, and identifying new business opportunities that may be developed by First
Health Services Corporation. You submitted a copy of your job description for your new
position, which is incorporated herein by reference.
Based upon the foregoing facts, you asked this Commission to advise whether,
under the Ethics Act, you could accept employment with First Health Services
Corporation.
Advice of Counsel 00 -592 was issued on July 18, 2000. The Advice of Counsel
stated that in your former capacity as an Annuitant Hearing Officer for DPW, you would
be considered a "public employee" subject to the Ethics Act, and that upon termination
of service with DPW, you became a "former public employee" subject to the restrictions
of Section 1103(g) of the Ethics Act. The Advice of Counsel noted that in June 1997,
you retired from the DPW Dauphin County Assistance Office, but returned to DPW in
the fiscal year 1997 -1998. The Advice of Counsel further noted that you continued
employment with the DPW Bureau of Hearings and Appeals as an Annuitant Hearing
Officer in fiscal years 1998 -1999 and 1999 -2000, and completed your latest assignment
at that Bureau on May 11, 2000. As to your subsequent return to work for DPW in the
aforementioned fiscal years, the Advice of Counsel stated that you once again became
a public employee.
The Advice of Counsel outlined the restrictions that would apply to you as a
former public employee for the first year following termination of service with DPW. It
was determined that your former governmental body would be DPW in its entirety.
III. DISCUSSION:
Our review of this matter is de novo.
It is clear that in your former capacity as an Annuitant Hearing Officer for the
Department of Public Welfare ( "DPW "), you were a "public employee' subject to the
provisions of the Ethics Act and the Regulations of the State Ethics Commission. See,
65 Pa.C.S. §1102; 51 Pa. Code §11.1. Our review of the job description for your former
position confirms that conclusion.
It is equally clear that upon termination of your aforesaid position with DPW, you
became a "former public employee" subject to the restrictions of Section 1103(g) of the
Ethics Act. Section 1103(g) of the Ethics Act provides as follows:
§ 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:
Graves, 00 -009
October 5, 2000
Page 3
§ 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.
"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.
Based upon our review, the Advice of Counsel properly concluded that your
former governmental body is DPW in its entirety. This conclusion is not only based
upon the clear and obvious meaning of the statutory language, but upon the legislative
history which is cited and quoted in the Advice of Counsel. We would merely note that
in our view, the statutory language is not ambiguous, but even if it were, reference to
the legislative history is an appropriate manner by which to resolve any ambiguity. See,
Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(7); Stanisic, Opinion 98 -004.
Thus, your former governmental body includes all of DPW.
As for our interpretations of the restrictions of Section 1103(g), they have been
so often recited that we see no need to reiterate them herein. We have reviewed the
Advice of Counsel and are satisfied that it accurately apprised you of the nature of the
restrictions under Section 1103(g) and of certain important Commission precedents
pertaining to that Section. We adopt and incorporate herein by reference the Advice's
recitation of the Section 1103(g) restrictions and related precedents.
With regard to your retirement and subsequent return to work for DPW, the
Advice concluded that when you returned to work for DPW in the fiscal years 1998 -1999
and 1999 -2000, you once again became a public employee, and that upon termination
of your service on May 11, 2000, you once again became a former public employee
subject to the restrictions of Section 1103(g) of the Ethics Act. We recently addressed
this issue in McGlathery, Opinion 00 -004, which involved a District Utility Relocation
Administrator for the Commonwealth of Pennsylvania ( "PennDOT ") who retired from his
position on January 22, 1999 and returned to PennDOT on February 22, 1999 as an
annuitant under the "95 -day program." We held that a public employee who would retire
from PennDOT but would subsequently return to work for PennDOT under the 95 -day
program would become a "public employee" again. Upon termination of service under
that program, the retiree would once again become a `former public employee" subject
to the restrictions of Section 1103(g). Based upon this analysis, we concluded that as a
result of McGlathery's participation in the 95 -day program, the one -year period of
applicability of Section 1103(g) began anew following his termination of participation in
the 95 -day program on February 4, 2000.
Graves, 00 -009
October 5, 2000
Page 4
Based upon McGlathery, supra, we affirm the conclusion reached in the Advice
of Counsel regarding your employment status under the Ethics Act in light of your
retirement and subsequent return to DPW.
The appeal of Advice of Counsel 00 -592 is denied. Advice of Counsel 00 -592 is
affirmed.
The ropriety of the proposed conduct has only been addressed under the Ethics
Act. Specifically not addressed herein is the Governor's Code of Conduct.
IV. CONCLUSION:
A former Annuitant Hearing Officer for the Department of Public Welfare
( "DPW "), would be a "former public employee" subject to the provisions of Section
1103(g) of the Public Official and Employee Ethics Act, 65 Pa. C.S. §1103(g). The
restrictions of Section 1103(g) of the Ethics Act apply for one year following termination
of public service. A public employee who would retire from DPW but would
subsequently return to work for DPW under a program that allows retirees to work up to
95 -days per fiscal year would, in so doing, again become a "public employee." Upon
termination of service under that program, the retiree would once again become a
"former public employee" subject to the restrictions of Section 1103(g). The restrictions
of Section 1103(g) would apply for a full one -year period each time the individual would
become a former public employee. The former governmental body would be DPW in its
entirety. The restrictions of Section 1103(g) are accurately set forth in Advice of
Counsel 00 -592, which restrictions must be observed. The appeal is denied. Advice of
Counsel 00 -592 is affirmed.
Pursuant to Section 1107(10), the person who acts in good faith on this Opinion
issued to him shall not be subject to criminal or civil penalties for so acting provided the
material facts are as stated in the request.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code §21.29(b).
By the Commission,
Daneen E. Reese
Chair