HomeMy WebLinkAbout03-525 MaladyJohn F. Malady, Managing Partner
Malady & Wooten Public Affairs, LLP
604 North Third Street
Harrisburg, PA 17101
ADVICE OF COUNSEL
March 18, 2003
03 -525
Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State
Employee; Section 1103(i); Deputy Secretary; Office of Medical Assistance
Programs; Department of Public Welfare.
Dear Mr. Malady:
This responds to your letter of January 17, 2003, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
§ 1101 et seq., presents any restrictions upon employment of a Deputy
Secretary for the Office of Medical Assistance Programs, following termination of
service with the Department of Public Welfare.
Facts: As Managing Partner of Malady & Wooten Public Affairs, LLP ( "Malady &
Mn "), you seek an advisory on behalf of Margaret J. Dierkers, Ph.D. ( "Dierkers "), a
new employee of the firm. You have submitted the following facts.
Immediately prior to assuming employment with Malady & Wooten, Dierkers
served the Commonwealth of Pennsylvania as Deputy Secretary for the Office of
Medical Assistance Programs, Department of Public Welfare ( "DPW "), from July 19,
1999, to January 10, 2003. Having left Commonwealth employment, Dierkers will
represent clients of Malady & Wooten before the legislative and executive branches of
government on various contractual and policy issues.
You seek guidance as to the post - employment restrictions of the Ethics Act that
apply to Dierkers.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11)
of the Ethics Act, 65 Pa.C.S. §§ 1107(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
Malady /Dierkers 03 -525
March 18, 2003
Page 2
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
In the former capacity as Deputy Secretary for the Office of Medical Assistance
Programs, DPW, Dierkers would be considered a ublic official /public employee and an
"executive -level State employee" subject to the Ethics Act and the Regulations of the
State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1.
Consequently, upon termination of public service, Dierkers became a former
public official /public employee and a former executive -level State employee subject to
the restrictions of Section 1103(g) and Section 11030) of the Ethics Act.
Section 11030) restricts former executive -level State employees as follows:
§ 1103. Restricted activities
(i) Former executive -level employee. - -No former
executive -level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this 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.
65 Pa.C.S. § 11030).
Section 11030) restricts the ability of a former executive -level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 11030)
apply even where the business relationship is indirect, such as where the business in
question is a client of the new employer, rather than the new employer itself. See,
Confidential Opinion No. 94 -011. However, Section 11030) would not restrict DiercT — ers
from being employed by, receiving compensation from, assisting, or acting in a
representative capacity for Malady & Wooten or its client(s) provided and conditioned
upon the assumptions that Dierkers did not actively participate in recruiting Malady &
Wooten or such client(s) to Pennsylvania, and that Dierkers did not actively participate
in recruiting or inducing Malady & Wooten or such client(s) to open or expand a plant,
facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a
grant or loan of money from the Commonwealth of Pennsylvania to Malady & Wooten or
the client(s).
Unlike Section 11030), Section 1103(g) does not prohibit a former public
official /public employee from accepting a position of employment. However, 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 ":
§ 1103. Restricted activities
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
Malady /Dierkers 03 -525
March 18, 2003
Page 3
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," "governmental body" 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:
§ 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." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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-hiimself, 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 /employee; (4) participating in any matters before the former
governmental body as to acting on behalf of a person; and (5) lobbying. Popovich,
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
Malady /Dierkers 03 -525
March 18, 2003
Page 4
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 former public
official /public employee may not be identified on documents submitted to the former
governmental body. The former 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 /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.
In the instant matter, the submitted facts do not indicate whether Dierkers served
on any boards, commissions, committees, and the like in addition to serving as Deputy
Secretary for the Office of Medical Assistance Programs. Therefore, you are advised
that the governmental body with which Dierkers would be deemed to have been
associated upon termination of public service, hereinafter referred to as the "former
governmental body," would include: (1) DPW in its entirety including, but not limited to,
the Office of Medical Assistance Programs; and (2) any other governmental bodies such
as boards, commissions, or committees by which Dierkers was employed or to which
Dierkers was elected /appointed. See, Confidential Opinion, 01 -006 at 4. The
restrictions of Section 1103(g) apply for one year following termination of service with a
governmental body. Therefore, for the first year following termination of service,
Section 1103(g) of the Ethics Act would apply and restrict Dierkers from representing
persons before her former governmental body.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 11030) 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 /employee
and no public official /employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment 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 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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Malady /Dierkers 03 -525
March 18, 2003
Page 5
Conclusion: Upon termination of service as Deputy Secretary for the Office of
Medical Assistance Programs, Department of Public Welfare ("DPW"), Margaret J.
Dierkers, Ph.D. ("Dierkers") became a former public official /public employee and a
former executive -level State employee subject to the restrictions of Section 1103(g) and
Section 11030) of the Public Official and Employee Ethics Act ( "Ethics Act"), 65 Pa.C.S.
1101 et seq. Under Section 11030) of the Ethics Act, Dierkers would not be prohibited
from being employed by, receiving compensation from, assisting, or acting in a
representative capacity for Malady & Wooten Public Affairs, LLP ( "Malady & Wooten ")
or its client(s) based upon the assumptions that Dierkers did not actively participate in
recruiting Malady & Wooten or such client(s) to Penns /Ivania, and that Dierkers did not
actively participate in recruiting or inducing Malady & Wooten or such client(s) to open
or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money
or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. With
regard to Section 1103(g), the restrictions as outlined above must be followed. The
former governmental body would include: (1) DPW in its entirety including, but not
limited to, the Office of Medical Assistance Programs; and (2) any other governmental
bodies such as boards, commissions, or committees by which Dierkers was employed
or to which Dierkers was elected /appointed. The restrictions of Section 1103(g) apply
for one year following termination of service with a governmental body. 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.
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). 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.
Sincerely,
Vincent J. Dopko
Chief Counsel