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HomeMy WebLinkAbout00-521 CarrollSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1-800- 932 -0936 ADVICE OF COUNSEL February 17, 2000 Timothy P. Sukay, MSW, LSW MH & MR Program 16 W. High Street Carlisle, PA 17013 00 -521 Re: Conflict; Former Public Official /Employee; County; Capital Area Behavioral Health Collaborative; Section 1103(g); Waiver. Dear Mr. Sukay: This responds to your letter of January 19, 2000 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 ;g. presents any prohibition or restrictions, following termination of service with the county, upon county officials or county employees in a five county area from seeking employment with a corporation that acts as a vehicle to explore and design an approach to enter into a contract with the Commonwealth to provide behavioral health services under the State - mandated HealthChoices program. Facto: As Program Evaluator /MIS Director for the Mental Health and Mental Retardation (MH & MR) Program, you request an advisory on behalf of yourself and the following individuals: Robert B. Goril, Cumberland -Perry MH & MR Director; Jack Carroll, Cumberland -Perry Drug and Alcohol Commission Director; Silvia Herman, C -P Mental Health Specialist; Joseph Roynan, Dauphin County MR Administrator; Suhring, Dauphin County Deputy Administrator; Paul Geffen, Dauphin County Fiscal Officer; Michealene Barone, Acting Dauphin County Human Service Director; Charles Udit, Dauphin County Human Service Fiscal Officer; Smittie Brown, Dauphin County Drug and Alcohol Director; Dan Eisenhauer, Lebanon County Director of Mental Health; Kevin J. Schrum, Acting Lebanon County MH Administrator and D & A Specialist; Liz Groff, Lancaster County Director of Information Services; and Richard Kastner, Lancaster County D & A Director. The MH and Drug & Alcohol (D & A) Administrators of five surrounding counties, with the approval and endorsement of their respective county commissioners, have formed a consortium. The consortium acts as the vehicle to explore and design an approach to enter into a contract with the Commonwealth to provide Behavioral Health Services under the State mandated HealthChoices program. The consortium is made up of two classes of county employees: department heads for the respective MH and D & A programs in their own counties, who are FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Sukav, 00 -521 February 17, 2000 Page 2 appointed by county commissioners, and support staff, all of whom are hired by their counties under Civil Service procedures. A private corporation known as the Capital Area Behavioral Health Collaborative ( CABHC) has been formed under the laws of the Commonwealth with a related 501(c)(3) non - profit filing with the Federal government. One or more of the above named individuals may wish to become solely employed by CABHC while the majority of said individuals will remain solely employed by their respective counties. You ask for an advisory as to the following questions. 1. Whether it would be ethical if the above named county employees would become employed by CABHC; 2. Whether there is any provision for a type of "grandfathering" of existing county employees into CABHC; 3. Whether the one -year restriction would apply to the above named individuals and in what situations would said restriction apply; and 4. Whether there are any differences in the applicability of the Ethics Act given the fact that some of the county employees are appointed and some are Civil Service employees. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. § 51107(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), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. As individuals appointed by your county commissioners or employed by your county, you are public officials or public employees as those terms are defined in the Ethics Act, and hence you are subject to the provisions of that Act. Consequently, upon termination of public service, you would become a "former public official" or a "former public employee" subject to Section 1103(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. Sukav, 00 -521 February 17, 2000 Page 3 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. "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. P000vich, 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 Sukav 00 -521 February 17, 2000 Page 4 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 /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. The governmental body with which you and the above named individuals would be associated upon termination of public service would be the county that appointed or employed you in its entirety. Therefore, for the first year after termination your service with the county that appointed or employed you, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before said county. As for your first question, you are advised that Section 1103(g) of the Ethics Act would not prohibit any of you from seeking employment with CABHC to the extent that your activities in your new position would not result in prohibited representation as discussed above. In this regard, a public official /employee of Perry County, for example, would be prohibited from "representing" a "person" before Perry County, his former governmental body; however, that same county official /employee would not be prohibited from "representing" a "person" before any other county that was not his former governmental body. As for your second question, if you are using the term "grandfathering" in the context of existing county officials /employees accepting employment with CABHC, as stated above, Section 1103(g) would not restrict such county officials /employees from accepting employment with the corporation provided that their activities in their new position would not result in prohibited representation. If you are using the term "grandfathering" in the context of providing a waiver of the Section 1103(g) restrictions, you are advised that the Ethics Act does not provide for waivers of the applicability of the restrictions of Section 1103(g). The State Ethics Commission does not have the authority to grant that which is not authorized by law. See, Richardson, Opinion No. 93 -006; Zeigler, Opinion No. 98 -001. As the Commission stated in Zeigler, suora: [T]his Commission is duty -bound to apply the Ethics Law as it has been promulgated by the General Assembly. The statute provides for the Section 3(g) restrictions to apply to all former public officials /public employees. There is no mention in the statute of any "variances" or "exceptions." Obviously, the facts in any given case may be more or less compelling than in others, but the law must be applied fairly and uniformly. Id. at 6. Sukav 00 -521 February 17, 2000 Page 5 Similarly, in your case, the State Ethics Commission would not have the power to grant a "waiver" of Section 1103(g) restrictions because such are not authorized by the Ethics Act. Your third question regarding the one year period of restricted activity has been fully addressed above. As for your fourth question, the Ethics Act makes no distinction between individuals who are appointed by a county and individuals who are employed by a county under Civil Service procedures. The Ethics Act applies uniformly to both classes of individuals. 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 your capacities as appointed county officials or civil service county employees, you would be considered "public officials" or "public employees" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with the county that appointed or employed you, each of you would become a "former public official" or "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the county that appointed or employed you in its entirety. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with CABHC following termination of your service with your former governmental body. However, 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 complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Sukay, 00 -521 February 17, 2000 Page 6 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 I. 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, Vincent J. Dopko Chief Counsel