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HomeMy WebLinkAbout23-517 Kupas 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 March 30, 2023 To the Requester: Douglas F. Kupas, MD 23-517 Dear Dr. Kupas: This responds to your letter dated February 24, 2023, received March 1, 2023, by which you requested an advisory from the Pennsylvania State Ethics Commission (“Commission”), seeking guidance as to the general issue presented below: Issue: 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 as the Commonwealth EMS Medical Director for the Pennsylvania Department of Health (“Department of Health”), Bureau of Emergency Medical Services (“Bureau of EMS”). Brief Answer: YES. During the first year following termination of your employment with the Department of Health, 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 an employer — before your “former governmental body,” the Department of Health with promised or actual compensation. Facts: You request an advisory from the Commission based upon submitted facts that may be fairly summarized as follows. On December 20, 2022, you resigned from your part-time employment as the Commonwealth EMS Medical Director for the Department of Health, Bureau of EMS. The roles and responsibilities of the Commonwealth EMS Medical Director are set forth in the regulations of the Department of Health. See, 28 Pa. Code § 1023.5. Kupas, 23-517 March 30, 2023 Page 2 Pursuant to the regulations of the Department of Health, you hold the following EMS certifications: (1) medical command physician(28 Pa. Code § 1023.2); (2) medical command facility medical director (28 Pa. Code § 1023.3); (3) EMS vehicle operator (28 Pa. Code § 1023.22); and (4) prehospital EMS physician (28 Pa. Code § 1023.30). These certifications require either biennial or triennial registration with the Department of Health.See, 28 Pa. Code §§ 1023.2, 1023.3, 1023.22, 1023.30. You are employed as an emergency physician at Geisinger Health System. You currently serve as the EMS agency medical director (see, 28 Pa. Code § 1023.1) for various entities that are licensed as EMS agencies. These entities contract with Geisinger Health System for your service in that role. The name of the EMS agency medical director is included on an entity’s application for an EMS agency license, which is submitted to the Department of Health. Several volunteer fire departments that are preparing to apply for an EMS agency licensefor their Quick Response Service have approached you and proposed that you serve as their EMS agency medical director, which would involve listing you as their EMS agency medical director on their applications for EMS agency licenses. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose prohibitions or restrictions upon youduring the first year following termination of your employmentwith the Department of Health. In particular, you pose the following questions: (1) Whether you would be permitted to continue to hold your EMS certifications and register them with the Department of Health when necessary; (2) Whether you would be permitted to continue to serve as the EMS agency medical director for the various EMS agencies for which you already serve in that role or for the volunteer fire departments that propose to utilize you as their EMS agency medical director; (3) Whether you would be permitted to provide expert opinion to law firms and EMS providers in Pennsylvania in legal matters related to EMS care by: (a) providing expert opinion to an EMS provider or lawyer representing an EMS provider if done pro bono and outside of testimony; (b) providing testimony related to such expert opinion in the Commonwealth court system; or (c) providing testimony related to such expert opinion at a hearing before the Department of Health; and (4) Whether you would be permitted to provide advice, recommendations, and opinions to Pennsylvania lawmakers with regard to matters related to EMS care and to work directly with lawmakers or stakeholder groups such as the Pennsylvania College of Emergency Physicians to help in the process of writing or promoting laws that may relate to EMS care, providers, or agencies in Pennsylvania. 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 Kupas, 23-517 March 30, 2023 Page 3 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 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. During your employment as the Commonwealth EMS Medical Director for the Department of Health, Bureau of EMS, you were considered 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 roles and responsibilities of the Commonwealth EMS Medical Director as set forth in the regulations of the Department of Health, 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 employment with the Department of Health, you became 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 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. Kupas, 23-517 March 30, 2023 Page 4 “Person.” A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. “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. 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 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. Kupas, 23-517 March 30, 2023 Page 5 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 are deemed to have been associated upon termination of your employment with the Department of Health is the Department of Health in its entirety, including but not limited to the Bureau of EMS. Therefore, for the first year following termination of your employment with the Department of Health, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to yourself or an employer — before the Department of Health with promised or actual compensation. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be addressed. In response to your first question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from continuing to hold your EMS certifications and registering them with the Department of Health as required by its regulations as such activity would not constitute an attempt to influence the Department of Healthon behalf of yourself or another person with promised or actual compensation. With respect to your second question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from continuing to serve as the EMS agency medical director for the various EMS agencies for which you already serve in that role. As to the volunteer fire departments that propose to utilize you as their EMS agency medical director, you are advised that the listing of your name on their applications to the Department of Health for EMS agency licenses would constitute an attempt to influence the Department of Health on their behalf. Accordingly, Section 1103(g) of the Ethics Act would prohibit you from serving as their EMS agency medical director unless such service would be without promised or actual compensation. In response to your third question, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from providing expert opinion to an EMS provider or lawyer representing an EMS provider if done pro bono and outside of testimony or providing testimony related to such expert opinion in the Commonwealth court system, as such activity(ies) would not involve representation before the Department of Health. Section 1103(g) of the Ethics Act would prohibit you from providing testimony related to your expert opinion at a hearing before the Department of Health unless your testimony would be provided without promised or actual compensation. With respect to your fourth question, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from providing advice, recommendations, and opinions to Pennsylvania lawmakers with regard to matters related to EMS care or working directly with lawmakers or stakeholder groups such as the Pennsylvania College of Emergency Physicians to help in the process of writing or promoting laws that may relate to EMS care, providers, or agencies Kupas, 23-517 March 30, 2023 Page 6 in Pennsylvaniaas long as in so doing, you would not engage in prohibited representation before the Department of Health as delineated above. 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: During your employment as the Commonwealth EMS Medical Director for the Pennsylvania Department of Health (“Department of Health”), Bureau of Emergency Medical Services (“Bureau of EMS”), you were considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. Upon termination of your employmentwith the Department of Health, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. Your former governmental body is the Department of Health in its entirety, including but not limited to the Bureau of EMS. For the first year following termination of your employment with the Department of Health, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” — including but not limited to yourself or an employer — beforethe Department of Healthwith promised or actual compensation. The restrictionsas to representation outlined above must be followed. 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