HomeMy WebLinkAbout92-598Dear Mr. Barto:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 16, 1992
Charles O. Barto, Jr., Esquire 92 -598
Charles 0. Barto, Jr. and Associates
608 North Third Street
Harrisburg, PA 17101
Re: •Former Public Employee; Section 3(g); Executive -Level State
Employee; Section =3(i); Director, Division of Safety
Inspection, • Bureau of Quality Assurance, Office of Planning
and Quality Assurance; Department of Health.
This responds to your letters of May 5, 1992, and May 13,
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 the Director of the
Division of Safety Inspection, Bureau of Quality Assurance, Office
of Planning and Quality Assurance following termination of service
with the Commonwealth of Pennsylvania, Department of Health.
Fabt As legal counsel for Thomas M. Peters, the former Director
of the Division of Safety Inspection, Bureau of Quality Assurance,
Office of Planning and Quality Assurance within the .Commonwealth of
Pennsylvania, Department of Health (DOH), you request an advisory
from - this'Commission Olth regard to Mr. Peters' prospective
involvement in providing consulting services to a nursing facility.
The DOH utilizes Form HCFA- 2786Q, the Fire /Smoke Zone
Evaluation Worksheet for Health Care Facilities, in determining
whether *health care facilities meet licensing standards as well as
tequirements for certification as Medicare and /or Medical
Assistance providers. A copy of said form has been submitted and
is incorporated herein by reference. Where a determination is to
be made regarding an existing facility (as opposed to as part of
the construction process), the facility is asked to file the form
with DOH for its review and concurrence. The surveyor utilized by
the facility signs the form. The DOH signs the form as the Fire
Authority if it concurs and approves the facility surveyor
Charles O. Barto, Jr., Esquire
June 16, 1992
Page 2
responses on the form. The survey may be conducted by DOH staff,
an architect, consultant or any other person with specialized
knowledge of survey requirements.
You state that Mr. Peters has specialized knowledge of the
survey requirements and provides his services to facilities in need
of professional survey findings. The DOH has expressed concern
that its review, concurrence and approval of a survey form prepared
by Mr. Peters may constitute a violation of Section 3(g) of the
Ethics Law if done during the one -year period following Mr. Peters'
departure from DOH.
You suggest that Mr. Peters' limited involvement in the survey
is not in contravention of Section 3(g).
Copies of Mr. Peters' job description, job standards and
organizational chart have been obtained from DOH and are
incorporated herein by reference. Mr. Peters' numerous
responsibilities and duties in his former position with DOH as set
forth in the incorporated documents included: planning and
directing all of the Division of Safety Inspection's major
activities regarding compliance of all pertinent health care
facilities with the Life Safety. Code for licensure and Medicare/
Medicaid certification; providing ongoing consultation and
directing the review and approval of construction drawings for all
pertinent health care facilities in accordance with the Life Safety
Code, Federal guidelines, Long Term Care regulations and the
Division of Hospital regulations; serving as the State Fire
Authority for Life Safety Code licensure and Federal certification
survey processes, including but not limited to, waivers, design
changes, product acceptability, interim protection plans and
occupancy certificates; and reviewing Life Safety Code and Federal
guidelines Code changes or modifications and developing pilot
projects for the Federal government to implement the changes or
modifications.
Discussion: As the Director of the Division of Safety Inspection,
Bureau of Quality Assurance, Office of Planning and Quality
Assurance, Department of Health, Mr. Thomas M. Peters would be
considered a "public employee" within the definition of that term
as forth in the Public Official and Employee Ethics Law and the
Regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1.
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 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.
Charles O. Barto, Jr., Esquire
June 16, 19g2
Page 3
In addition, in his former position with DOH, Mx. Peters would
be an executive-level state :employee as that term is defined under
the Ethics Law, and hence Mr. Peters would be subject to the
requirements of Section 3(i) of the Ethics Law, infra.
The following terms are defined in the Ethics Law as follows:
,Section 2. Definitions.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential informatioh received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not "include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a= business with which he or a member of his
immediate family is associated.
: "Authority of office or employment . " The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
"Executive -level State employee." The
Governor, •Lieutenant Governor, cabinet
members, deputy secretaries, the Governor's
office staff, any State employee -witiq
discretionary powers which may affect the
outcome of a State. agency's' decision in
Charles 0. Barto, Jr., Esquire
June 16, 1992
Page 4
relation to a private corporation or business
or any employee who by virtue of his job
function could influence the outc me of such a
decision.
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
anything of monetary value 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 offigxal/emplOyeewothd 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.
Section 3(i) of the Ethics Law provides:
Section 3. 4estricted Activities
(i) No former executive -level State
employee May for a period of two years from
the time that he terminates his State
employment be employed by, receive
compensation from, assist or act in a
representative capacity for a business or
corporation that he actively participates in
recruiting to the Commonwealth of Pennsylvania
or that he actively participated in inducing
to open a new plant, facility or branch in the
Commonwealth or that he actively participated
in inducing to expand an existent plant or
faoility within the Commonwealth, provided
that the above prohibition shall be invoked
only when the recruitment or inducement is
accomplished by a grant or loan of money or a
promise of a grant or loan of money from the
Commonwealth to the business or corporation
recruited or induced to expand.
Under Section 3(a) of the Ethics Law quoted above, a public
official /employee may .not use the authority of public office/
employment or confidential information received by holding such a
public position for the private pecuniary benefit of himself, a
member of his immediate family, or business with which he or a
member of his immediate family is associated.
In applying Section 3(a) of the Ethics Law to the proffered
facts, Segt .er 3(4) would prohibit Mr. Peters from using the
position or emoluments of his public position or confidential
Charles 0. Barto, Jr., Esquire
June 16, 1992
Page 5
information to advance a private business /employment opportunity.
Once again, it not suggested that Mr. Peters has engaged in such
conduct and the foregoing is provided to give a complete response
to the inquiry. '
As for Section 3(i) of the Ethics Law, Mr. Peters is subject
to that .provision of'law since Mr. Peters was an executive -level
state ;employee. Howevr, Section 3(i) would not restrict Mr.
Peters from the proposed private business opportunity /employment,
conditioned upon the assumption that he would not be employed by,
receive compensation from, assist, or act in a representative
capacity for a business or corporation that he actively
participated in inducing or recruiting to open or expand a facility
or branch through a grant or loan of money or a promise of a grant
or loan of money from the Commonwealth of Pennsylvania.
As for Section 3(g) of the Ethics Law, upon termination of
public service, Mr. Peters became 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 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 the request the governmental body with
which Mr. Peters has been associated while working with DOH 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 h 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
Charles O. Barto, Jr., Esquire
June 16, 1992
Page 6
that governmental body.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which Mr. Peters has
been associated upon termination of public service would be DOH in
its entirety. 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. 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 DOH, Section 3(g) of the Ethics Law would apply and restrict
representation of persons or new employers vis-a-vis DOH.
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..." Legislative Journal -of House,
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 Mr.
Peters has been associated is DOH in its entirety.
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 with respect to the former
governmental body. Likewise, there is no general limitation on the
type of employment in which a person may engage, following
Charles 0. Barto, Jr., Esquire
June 16, 1992
Page 7
departure from their governmental body. It is noted, however, that
the conflicts bf 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, negotiations, lobbying
and submitting bid or contract proposals which
are signed by' :or 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.
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 the former governmental body
or bodies, including, but not limited to, negotiations or
renegotiations in general or as to contracts;
2. Attempts to influence;
3. Submission of bid or contract proposals which are signed
by 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;
Charles O Baxto, Jr., Esquire -
June 16, 1392
Page 8
5. Lobbying, that is representing the interests of any
person or employer before the. forcer 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 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 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, Mr. Peters should not engage in the type of
activity outlined above.
Mr. Peters may assist in the preparation of any documents
presented to DOH. However, he may not be identified on documents
submitted to DOH, including but not limited to the aforesaid Form
HCFA-- 2786Q. He may-also counsel any person regarding that person's
appearance before DOH. Once again, however, the activity in this
respect should not be revealed to DOH. Of course, any ban under
t
the Ethics Law would not prohibit or preclude the making of general
informational inquiries of DOH 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.
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 Law has not been considered in that they do not
involve an interpretation of the Ethics Law. Specifically not
address herein is the applicability of the Governor's Code of
Conduct.
Conclusion: In his former capacity as the Director of the Division
of Safety Inspection, Bureau of Quality Assurance, Office of
Planning and Quality Assurance for the Commonwealth of
Pennsylvania, Department of Health (DOH), Mr. Thomas. M. Peters
would be considered a' "public employee" and an executive -level
state employee subject to the provisions of the Ethics Law. Under
Section 3(i) of the Ethics Law, Mr. Peters would not be prohibited
from accepting the proposed private business opportunity /employment
of providing consulting services to a nursing facility based upon
the assumption that Mr. Peters would not be employed by, receive
compensation from, assist, or act in a representative capacity for
Charles O. Barto, Jr.., Esquire
June 16, 1992
Page 9
a business or corporation that he actively participated in inducing
or recruiting to open or expand a facility or branch through a
grant or loan of money or a promise of a grant or loan of money
from the Commonwealth of Pennsylvania. Upon termination of service
with DOH, Mr. Peters became a "former public employee" subject to
Section,3(g) : of the Ethics Law. The former governmental body is
DOH in its entirety including but not limited to the Division of
Safety Inspection, Bureau of Quality Assurance, and Office of
Planning and Quality Assurance. 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 Conj.ssion, and
evidence of good faith conduct in any other civil or criminal
proceeding, providing the requestor.has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
such•. •
This letter is a public record and will be made available as
Finally, if you disagxee 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 S2.12.
Sincerely,
Vincent J. Dopko
Chief Counsel