HomeMy WebLinkAbout22-557 Richard
PHONE: 717-783-1610
STATE ETHICS COMMISSION FACSIMILE: 717-787-0806
FINANCE BUILDING WEBSITE: www.ethics.pa.gov
TOLL FREE: 1-800-932-0936
613 NORTH STREET, ROOM 309
HARRISBURG, PA 17120-0400
ADVICE OF COUNSEL
December 23, 2022
To the Requester:
Andrea J. Richard, D.O.
22-557
Dear Ms. Richard:
This responds to your letter dated November 16, 2022, by which you requested an advisory
from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the
issues presented below:
Issues:
(1) Whether the Public Official and Employee Ethics Act (“Ethics Act”), 65 Pa.C.S. § 1101 et
seq., would impose restrictions upon you following termination of your employment with
the Pennsylvania Department of Human Services (“Department of Human Services”) as
the Chief of Clinical Services, MH at Warren State Hospital.
Brief Answer: YES. During the first year following termination of your Commonwealth
employment, Section 1103(g) of the Ethics Act would apply and restrict you from engaging
in any activity that would involve “representation” of a “person” — including but not
limited to yourself or a new employer — before your “former governmental body,” the
Department of Human Services, including but not limited to Warren State Hospital.
(2) Whether Section 1103(g) of the Ethics Act would prohibit you from performing the duties
of the position of Chief of Clinical Services, MH at Warren State Hospital as an
independent contractor to the Department of Human Services.
Brief Answer: YES. Section 1103(g) of the Ethics Act would prohibit you performing the
duties of the position of Chief of Clinical Services, MH at Warren State Hospital as an
independent contractor to the Department of Human Services as such activity would
necessarily involve prohibited representation of a person — yourself — before the
Department of Human Services.
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December 23, 2022
Page 2
(3) Whether there would be any possible exemptions to the restrictions of Section 1103(g) of
the Ethics Act given an anticipated severe staffing shortage at Warren State Hospital at or
about the time of your planned retirement from Commonwealth employment.
Brief Answer: NO. The Ethics Act does not provide for waivers of or exemptions to the
applicability of its restrictions, and as such, the Ethics Commission does not have the
authority or discretion to grant you a waiver of or exemption to the restrictions of Section
1103(g) of the Ethics Act.
Facts:
You request an advisory from the Commission based upon submitted facts that may be
fairly summarized as follows.
You are currently employed with the Department of Human Services as the Chief of
Clinical Services, MH at Warren State Hospital. You have submitted a copy of your official
Commonwealth position description, which document is incorporated herein by reference. Per the
position description, the core working title of your position is that of Chief Medical Officer. A
copy of the job classification specifications for the position of Chief of Clinical Services, MH (job
code 37550) has been obtained and is also incorporated herein by reference.
You anticipate that you will retire from your Commonwealth employment on or about June
30, 2023. You state that Warren County, where Warren State Hospital is located, is a very rural
area and that the recruitment and hiring of physicians, psychiatrists, and certified registered nurse
practitioners for employment at Warren State Hospital is an extremely difficult task. You state
that Warren State Hospital currently has an extreme shortage of frontline staff and that all efforts
through the past six years to hire through both civil service and the contractor company pathways
have yielded no interested candidates. You further state that it is anticipated that the current
shortage of frontline staff will become even more severe in the next six to seven months,
particularly if a line staff physician has to take on your current administrative role when you retire.
You seek guidance as to whether the Ethics Act would impose prohibitions or restrictions
upon you during the first year following termination of your Commonwealth employment. In
particular, you ask whether the Ethics Act would prohibit you from performing the duties of the
position of Chief of Clinical Services, MH at Warren State Hospital as an independent contractor
to the Department of Human Services, and if so, whether there would be any possible exemptions
to the Ethics Act that would allow you to do so.
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 requester based upon the facts that the
requester has submitted. In issuing the advisory based upon the facts that the requester has
submitted, the Commission does not engage in an independent investigation of the facts, nor does
it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully
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December 23, 2022
Page 3
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 requester has truthfully disclosed all of the material facts.
As the Chief of Clinical Services, MH at Warren State Hospital of the Department of
Human Services, you are a “public 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. This conclusion is based
upon the position description and the job classification specifications, which when reviewed on an
objective basis, indicate clearly that the power exists to take or recommend official action of a
non-ministerial nature with respect to one or more of the following: contracting; procurement;
administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing;
regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis
on the interests of another person.
Consequently, upon termination of your employmentwith the Department of Human
Services, you would become 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”:
§ 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.
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:
§ 1102. Definitions
“Represent.”To act on behalf of any other person in any
activity which includes, but is not limitedto, 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.
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December 23, 2022
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“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 official/public employee himself, Confidential
Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007.
The term “represent” 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. Popovich, Opinion 89-005.
During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section
1103(g) generally would prohibit a former public official/public employee from contracting with
the former governmental body (see, Shaub, Order 1242; Confidential Opinion, 97-008;
Confidential Opinion, 93-005) or providing consulting services constituting representation before
the former governmental body (see, Claycomb, Opinion 14-004; Schrempf, Opinion 13-004).
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 if the invoices pertain to a contract that
existed prior to termination of service with such governmental body. Shay, Opinion 91-012.
However, if such a pre-existing contract does not involve the unit where a former public employee
worked, the name of the former public employee may appear on routine invoicesif 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
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December 23, 2022
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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 90-006; Sharp, Opinion 90-009-R.
The governmental body with which you would be deemed to have been associated upon
termination of your employment with the Department of Human Services would be the Department
of Human Services in its entirety, including but not limited to Warren State Hospital. Therefore,
for the first year following termination of your employment with the Department of Human
Services, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a
“person”— including but not limited to yourself or a new employer — before the Department of
Human Services.
In response to your specific question, you are advised as follows.
During the first year following termination of your employment with the Department of
Human Services, Section 1103(g) of the Ethics Act would prohibit you from performing the duties
of the position of Chief of Clinical Services, MH at Warren State Hospital as an independent
contractor to the Department of Human Services as such activity would necessarily involve
prohibited representation of a person — yourself — before the Department of Human Services.
See, Shaub, supra; Claycomb, supra; Schrempf, supra; Confidential Opinion, 97-008; Confidential
Opinion, 93-005; Marcovici, Advice 16-502.
You are further advised that even though there may be an anticipated severe staffing
shortage at Warren State Hospital at or about the time of your planned retirement from
Commonwealth employment, the Ethics Act does not provide for waivers of or exemptions to the
applicability of its restrictions, and as such, the Ethics Commission does not have the authority or
discretion to grant you a waiver of or exemption to the restrictions of Section 1103(g) of the Ethics
Act. Cf., Confidential Opinion, 17-007; Whitlock, Opinion 04-015; Ziegler, Opinion 98-001;
Long, Opinion 97-010; Richardson, Opinion 93-006.
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.
Conclusion:
As the Chief of Clinical Services, MH at Warren State Hospital of the Department of
Human Services, you are a “public employee” subject to the Ethics Act and the Regulations of the
State Ethics Commission. Upon termination of your employment with the Department of Human
Services, you would become a “former public employee” subject to Section 1103(g) of the Ethics
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December 23, 2022
Page 6
Act. Your former governmental body would be the Department of Human Services in its entirety,
including but not limited to Warren State Hospital. For the first year following termination of your
employment with the Department of Human Services, Section 1103(g) of the Ethics Act would
apply and restrict “representation” of a “person”— including but not limited to yourself ora new
employer — before the Department of Human Services. The restrictions as to representation
outlined above must be followed.
During the first year following termination of your employment with the Department of
Human Services, Section 1103(g) of the Ethics Act would prohibit you from performing the duties
of the position of Chief of Clinical Services, MH at Warren State Hospital as an independent
contractor to the Department of Human Services as such activity would necessarily involve
prohibited representation of a person — yourself — before the Department of Human Services.
Even though there may be an anticipated severe staffing shortage at Warren State Hospital at or
about the time of your planned retirement from Commonwealth employment, the Ethics Act does
not provide for waivers of or exemptions to the applicability of its restrictions, and as such, the
Ethics Commission does not have the authority or discretion to grant you a waiver of or exemption
to the restrictions of Section 1103(g) of the Ethics Act. Lastly, the propriety of the proposed
conduct has only been addressed under the Ethics Act.
Pursuant to Section 1107(11) of the Ethics Act, 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 requester 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 receivedat 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.
Respectfully,
Bridget K. Guilfoyle
Chief Counsel