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HomeMy WebLinkAbout92-632Dear Mr. Markowski: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 25, 1992 Michael P. Markowski Director, Policy Analysis The Hospital Association of Pennsylvania 4750 Lindle Road P.O. Box 8600 Harrisburg, PA 17105-8600 92 -632 Re: Former Public Employee; Section 3(g); Manager, Health Economics Unit; Statistical Analyst Supervisor; Pennsylvania Health Care Cost Containment Council. This responds to your letter of'August.25, 1992,'in which you reques advice from the State Ethics Commission. Issue: Whether the Public 'Official and Employee .Ethics Law presents any restrictions upon employment of the Manager of the Health Economics thit with the job classification of Statistical Analyst Supervisor, following termination of service with the Pennsylvania Health Care Cost Containment Council. Facts: Noting a prior telephone conversati,o ; : with. Commmssion staff, you request an sdvisory from the State Ethics Commission regarding restrictions upon contacts with your . former employer, the Pennsylvania Health Care Cost Containment'touncil. You note that It is your understanding that the applicable restrictions would apply for one year after your departAre frpm your agency, where youp last date on their rolls . was ;dune 30, 1992..E You have gulDmitted a copy of your job description, job 91a*sification specifications, and organizational chart for your former position with the Pennsylvania Health Care Castypont4inmentC0g4cil, which documents are incorporated herein by referene. Tt i ;;noted that ylia job description designates your former positon ?a. Manage= `of the Health Economics Unit, and, .. that ..your o ssification specification was as a Statistical Analyst Supervisor SuperVisor. Discussion: As the Manager of the Health Economics Unit for the Pennsylvania - Health are Cost Containment Council ( "PHCCCC "), i4th a job classification of Statistical Analyst Supervisor, you would be considered a "public employee" within the definition of that Michael P. Markowski aeRtember 25, 1552 Page 2 term as set forth in the Publiic , and Employee Ethics Law and the Regulations of this doirmission. 65 P.S. §402; 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 . e4its to take or .;recommend official action of a non- tri-thiAtO4A nature with "respect to contracting, procurement, lanhkrig,' 'administering or monitoring grants, leasing, 'regul'ating", "auditing or other activities ,.where the economic irapact is 'greater than de miriimiS on the interests of another person.. Consequently, ,upon termination of public :Service, you became a "fortaer pOblic employe" kubject to Section 3(g) of the Public Offidial and Ethics Law. Section 3(g) of the Ethics Act prOVides Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual pompensatiOn, on any matter 12ef.Ore goveitrap, nts bo,dy with which he has beeh. aeSb'Ciated 'for one year after he.. leaves that bO Initia3.3.,y, to answer yoni request the governmental body •with which y,ou hs...,tre been 'associated while rforking with the PHCCCC must be identified'. - Then, the SCope the . 14ohibitions associated witi-the-00i10-cIpt and teriti Of' "representation" , must be .reviewed. The term "governmental body with which a public official or public employee .s Was been asiociatOtti! Is defined under the ,1 7 Ethics Lew as - olloWS - : Section 2. DefinitioiS. • ' • .• "Goverrunental body with which" a public- official or public employee is or has been asSOctect-" The governmental boy within State" government or a political siu4iyisi9n by which the public official or emp1Opii9 it or has 1p01,1" employed or to which the'-putaic- offtciol: or eraOloyee is or has been appointed or eledted a,nds-tiihdi7isione and office's within that - gdvernmental body. In applying the above definition to the instant imwttev, .we must ctincTIKle got, 0#41 ,pcoy- 14,2 y ou "s vg t ° ,l '1 = gniA- upoi t4e laW*9 of the tioA of pub / w th 14;IgItirrtVelegNia41.nteni'(Lec:444tive Journal of House, Michael P. Markowski September 25, 1992 Page 3 1989 Session, No. 15. 290, 291) and the prior precedent of this Commission. Thus, in Sirop i, 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- QO9 -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 PHCCCC, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis PHCCCC in its entirety. It is noted that Act 9 of *f 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 /employeehad 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, 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. 51901, . ,it ii• clear that the governmental body with which you have been associated is PHCCCC 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 departure frost 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 .aw generally is that during the term of a person's public pmp.oyment he must act consistently with the public trust and upon departure from the public • sector, that individual should not be Michael P. Markowski September 25, 1992 Page 4 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 Law defines "Represent" as follows: S4tlon 2. gtinitiQns. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the followings 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. In addition, the term,, "Person " is defined as follows under the Ethics Law; 4.e • .. a - . "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, . .club or other organization or group of persons. The Commission, in ' Popovvich, Opin oa 89 -005 : ¢ has also interpreted the terse "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 cur contain the name-cif • the former public official /employee; • 4. Participating in any matters before the farmer governmental bow as to acting an bebai f of a person.; S. Lobbying, that is representing the interests of any pew„ Q entployer before the $gamer governsental body in relation to logislatioq, regulations, etc. xb Coltusies.ton has also held that listing one's. name as the person who wdlI provide tedhnica1 assistance on ski gomposal, Michael P. Markowski September 25, 1992 Page 5 document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former go'bernmental:body. ;;In Shay, 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 PHCCCC. However, you may not be identified on documents submitted to PHCCCC. You may also counsel any person regarding that person's appearance before PHCCCC. Once again, however, the activity in this respect should not be revealed to PHCCCC. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquries PHCCCC 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that np 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 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 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. Conclusion: As the Manager of the Health EconomicsJJnit for the Pennsylvania Health Care Co - dt Containment Council ( "PHCCCC "), with a job ciassification of Statistical Analyst Supervisor, you would be considered a "public employee" as defined in the Ethics Law. Upon'termination of service, with the_ PHCCCC, you became a. "former public employee" subject tits Section 3(g) of the Ethics Law. The former governmental body is PHCCCC in its. entirety. The restrictions 4 to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Michael P. Markowski September 25, 1992 .Page 6 ,.. ,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 411 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. 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 52.12. 1 t4