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HomeMy WebLinkAbout03-567-S GortonChristopher P. Gorton, M.D. M.H.S.A. 810 Zermatt Drive Hummelstown, PA 17036 ADVICE OF COUNSEL September 30, 2003 03 -567 -S Re: Former Public Employee; Section 1103(g); Chief Medical Officer; Department of Public Welfare; Supplemental Advice. Dear Dr. Gorton: This responds to your letter of August 27, 2003, by which you requested supplemental advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq., presents any restrictions upon employment of a Chief Medical Officer following termination of service with the Department of Public Welfare. Facts: You initially requested an advisory from the State Ethics Commission by rf� of June 6, 2003. In response to your initial request, Advice, 03 -567 was issued to you on July 1, 2003, which Advice is incorporated herein by reference. In your supplemental request, you state that you are seeking an explanation as to how the original Advice of Counsel should be interpreted with respect to certain activities you are contemplating. You then pose the following specific inquiries: 1. In the context of an open stakeholder coalition meeting hosted and organized by a non - governmental organization ( "NGO ") for the purposes of planning a proposal for a new program that would be partially funded by your former governmental body and to which representatives of your former governmental body would be invited as participants, whether the Ethics Act would prohibit you from: a. Lending your assistance to the NGO in planning and logistics without having your name appear in any circulated documents; b. Attending the meeting to take personal notes without participating in the meeting; c. Participating at the meeting; or Gorton 03 -567 -S September 30, 2003 Page 2 d. Serving as the meeting facilitator; 2. Whether the mere presence of DPW representatives at a meeting, invited or otherwise, determines when a matter is "before" your former governmental body, or whether the nature of the business conducted at the meeting has some bearing. 3. Whether you would be restricted from submitting a bid to contract with the Pennsylvania Health Care Cost Containment Council by virtue of the fact that the Secretary of Public Welfare is a statutory member of the Council. Discussion: Since there were no specifics in your original letter of request dated June 6, 2003, you were provided a general response as to the applicability of Section 1103(g) of the Ethics Act. As to the specific inquiries you now raise in your supplemental request, you are advised as follows. In response to subparagraph (a) of your first inquiry, you may lend your assistance to the NGO in planning and logistics as long as your activities are not revealed to DPW and no documents containing your name are submitted to DPW. In response to subparagraph (b) of your first inquiry, to the extent that you would merely be attending the meeting to take notes without any further action, you would not transgress Section 1103(g) of the Ethics Act. However, if your actions would go beyond that of a mere observer so that you would actually engage in interactions with DPW, such as applying on behalf of your new employer for admittance into the meeting, such would be problematic under the Ethics Act. In response to subparagraphs (c) and (d) of your first inquiry, you may not participate in or serve as a facilitator at an NGO meeting where DPW representatives would be present as such would constitute prohibited representation before your former governmental body. In response to your second inquiry, where DPW representatives would be present at a meeting, Section 1103(g) would prohibit you from participating in, presiding over, or serving as a facilitator at such meeting, as you would necessarily be engaging in prohibited representation before your former governmental body. The nature of the business conducted at the meeting would have no legal significance. In response to your third inquiry, Section 1103(g) of the Ethics Act would not prohibit you from submitting a bid to contract with the Pennsylvania Health Care Cost Containment Council as such Council is not your former governmental body. 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 Governors Code of Conduct. Conclusion: Since there were no specifics in your original letter of request dated June 6, 2003, you were provided a general response as to the applicability of Section 1103(g) of the Ethics Act. You now have posed three specific inquiries in this supplemental advice request. The response below is limited solely to addressing those questions. In response to your first inquiry, you are advised as follows. In the context of an open stakeholder coalition meeting hosted and organized by a non - governmental organization ( "NGO ") for the purposes of planning a proposal for a new program that would be partially funded by your former governmental body and to which Gorton 03 -567 -S September 30, 2003 Page 3 representatives of your former governmental body would be invited as participants, you may lend your assistance to the NGO in planning and logistics as long as your activities are not revealed to DPW and no documents containing your name are submitted to DPW. To the extent that you would merely be attending the meeting to take notes without any further action, you would not transgress Section 1103(g) of the Ethics Act. However, if your actions would go beyond that of a mere observer so that you would actually engage in interactions with DPW, such as applying on behalf of your new employer for admittance into the meeting, such would be problematic under the Ethics Act. You may not participate in or serve as a facilitator at an NGO meeting where DPW representatives would be present as such would constitute prohibited representation before your former governmental body. In response to your second inquiry, where DPW representatives would be present at a meeting, Section 1103(g) would prohibit you from participating in, presiding over, or serving as a facilitator at such meeting, as you would necessarily be engaging in prohibited representation before your former governmental body. The nature of the business conducted at the meeting would have no legal significance. In response to your third inquiry, Section 1103(g) of the Ethics Act would not prohibit you from submitting a bid to contract with the Pennsylvania Health Care Cost Containment Council as such Council is not your former 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