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HomeMy WebLinkAbout92-543Ms. Shirely P. Ferrara 400 Glendale Road H -44 Havertown, PA 19083 Dear Ms. Ferrara: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HAR�RIIpSHB � UUFIGG, PA 17108-1470 TEA DVICE O F COUNS February 24, 1992 Re: Former Public Employee; Section 3(4); Health Facility Quality Examiner (Community Health Nursin4); Department of Health. This responds to your letter of January 8, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Health Facility Quality Examiner in Community Health Nursing following termination of service with the Department of Health. Facts: Having retired under the Mellow Act from your former employment position as a Health Facility Quality Examiner in Community Health Nursing in the Department of Health's Bureau of Quality Assurance, Division of Primary Care, you seek an advisory from the State Ethics Commission regarding your prospective part - time work in your profession. You state that there is an opportunity for you to be involved with a consulting firm, and that the consulting would involve start -up and maintenance activities in Hospice and Home Health Care Agency Programs. Since this work would be closely related to your previous position's responsibilities, you seek an advisory allowing this prospective employment. You have submitted copies of your job description and organizational chart for your former position with the Department of Health, which documents are incorporated herein by reference: Discussion. As a Health Facility Quality Examiner in Community Health Nursing for the Department of Health's Bureau of Quality Assurance, Division of Primary Care, you would be considered a "public employee" within the definition of,that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission: 65 P.S. Section 402; 51 Pa. Code Section 1.1: This conclusion is based upon the job description; which when reviewed on an objective basis, indicates clearly that 92 -543 Ms. Shirley P. Ferrara February 24, 1992 Page 2 the power exists to take - -or recommend official action of a non- ministerial nature with respect to 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 would become a "former public employee" subject to Section 3(g of the Public Official and Employee Ethics Law. Section 3(g) of. the Ethics Act provides that: Section 3. Restricted activities. (g) 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. Initially, to answer your request the governmental body with which you have been associated while working with the Department of Health must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you have been associated upon termination of public service would be the Department of Health in its entirety, including but not limited t� the Bureau of Quality Assurance and Division of Primary Care. Ms. Shirley P. Ferrara February 24, 1992 Page 3 The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) ' and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was . contended but was in fact restricted to all of DPW regarding the one year representation restriction. In Sirolli the former Division Director had appealed Advice of Counsel 89 -589 which had determined Sirolli's former governmental body to-be DPW. The Commission conducted - a detailed analysis of the relevant statutory provisions, the legislative criticism as to the Commission's prior narrow interpretation applied to the term "governmental body," and the legislative intent to broaden that definition to include the entire governmental body and not merely the subdivision therein. The Commission affirmed the Advice of Counsel and specifically rejected each of Sirolli's arguments for - limiting' the former governmental body to the - office for which Sirolli had been the Division Director, rather than DPW as a whole. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with the Department of Health, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Department of Health. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent Of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term; We sought to make particularly ;clear that when we are prohibiting for 1 year that revolving-door kind of conduct, we are dealing not only with a particular subdivision of an agency or -a local government but the entire -unit...-" Ms. Shirley P. Ferrara February 24, 1992 Page 4 Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law -must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you - have been associated is the Department of Health in its entirety, including but not limited to the Bureau of Assurance and Division of Primary Care. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than.witr. respect to the former governmental body. Likewise, there is no general: limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the :publiC trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiatiL'ns, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee.. - In addition, the term "Person" is defined as follows under the. Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. Ms. Shirley P. Ferrara February 24, 1992 Page 5 The Commission, in Popovich Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before ti'e former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general - as to contracts; 2. Attempts to influence; a. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any . matters before the former governmental body as to acting on behalf of a person; 5: Lobbying, that is representing the interests of any person. or employer .before the former governmental body in relation to.legislation, regulations, etc, The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shav, Opinion 91-012, the Commission held that Section 3 {g) would prohibit 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 pertained to a contract which existed prior to termination of public service. Therefore, within the first year after termination of service, you should not engage in the type of activity ,outlined above. You may - assist in the •preparation of any documents presented to the Department of Health so long as you are not identified as the prepares. You may . also counsel any person regarding that person's appearance before the Department of Health. Once again, however, the activity in this respect should not be revealed to the Department of Health. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Department of Health to secure information which is available to the general public. 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. Ms. Shirley P. Ferrara February 24, 1992 Page 6 Thus, although the Ethics Law would not preclude your accepting part time employment with a consulting firm - during the one year period of applicability of. Section 3(g), your conduct would be restricted by Section 3(g) as set forth above. To the extent your prospective conduct would involve representation of a person, including but not limited to your new employer, before your former governmental body, the Department of Health, the proposed conduct would be prohibited. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no - public official /employee`shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influen .ed 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 Law; 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 Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Health Facility Quality Examiner in Community Health Nursing for the Department of Health's Bureau of Quality Assurance, Division of Primary Care, you would be considered a "public employee" as , defined in the Ethics Law. Upon termination of service with the Department of Health, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Department of Health in its entirety, including but not limited to the Bureau of Quality Assurance and Division of Primary Care. The restrictions as to - representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this 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, providing the requestor has disclosed truthfully all Ms. Shirley P. Ferrara February 24, 1992 Page 7 the material facts and committed the acts - reliance on the Advice given. This letter is a public record and will be such. Vincent ,31 Dopko Chief Counsel complained of in made available as Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12.