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HomeMy WebLinkAbout04-574 HershJoel H. Hersh 5214 Meadowbrook Drive Mechanicsburg, PA 17050 -6834 Dear Mr. Hersh: ADVICE OF COUNSEL July 26, 2004 04 -574 Re: Former Public Employee; Section 1103(g); Director, Bureau of Epidemiology; Department of Health; Ledebur, Opinion 95 -007; Stanisic, Opinion 98 -004. This responds to your letter of June 22, 2004, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Ha.GS. § 1101 et seq., presents any restrictions upon employment of the Director of the Bureau of Epidemiology following termination of service with the Commonwealth of Pennsylvania Department of Health. Facts: As Director of the Bureau of Epidemiology for the Commonwealth of eennsylvania Department of Health ( "DOH "), you request an advisory regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Since 1993, you have managed the Bureau of Epidemiology, which Bureau functions as the "chief disease investigators" for DOH and the Commonwealth. You have submitted copies of your job description and job classification specifications, which documents are incorporated herein by reference. You are contemplating retiring from the Commonwealth and applying for the position of Executive Director of the Pennsylvania Emergency Health Services Council ("PEHSC"). It is your belief that PEHSC receives its funding from the DOH Office of Emergency Medical Services ( "EMS ") through the contract process. You note that in 1997, you were appointed Acting Director of the EMS for a six - month period until DOH was able to recruit a new director. Your duties as Acting Director ran concurrently with your duties as Director of the Bureau of Epidemiology. Following your six -month tenure as Acting Director of EMS, you had no further responsibility for any EMS activities. Hersh, 04 -574 July 26, 2004 Page 2 You have submitted copies of the position announcement and job description for the Executive Director of the PEHSC, which documents are incorporated herein by reference. Per the Job announcement and job description, the duties of the Executive Director of the PEHSC include establishing and maintaining effective working relationships with various governmental bodies including DOH. The job description further states that the Executive Director ensures coordination of PEHSC activities with EMS. It is administratively noted that the PEHSC was established by the Emergency Medical Services Act, 35 P.S. § 6921 et seq. The PEHSC is composed of up to 30 volunteer professional and paraprofessional organizations involved in emergency medical services. 35 P.S. § 6927(a). The Board of Directors of the PEHSC serves as a "State Advisory Council." 35 P.S. § 6927(a). As a State Advisory Council, the duties of the Board of Directors of PEHSC include, inter alia, "[a]dvis[ing] the department [DOH] on matters relating to manpower and training, communications, ambulance services, special care units and the content of rules, regulations, standards and policies romulgated by the department under ... [the Emergency Medical Services Act], and p such other subjects as may be deemed appropriate by the department "; and "[s]ervjing] as the forum for discussion on the content of the Statewide emergency medical services development plan, or any proposed revisions thereto, and advis[ing ] the department as to the content of the plan." 35 P.S. §§ 6927(b)(2), (3). The PEHSC is responsible for assisting DOH in preparing a Statewide emergency medical services development plan. 35 P.S. § 6929(a). You state that presently, you have no relationship with PEHSC and have no involvement as to the contract process. You ask whether you would be precluded from applying for and accepting the position of Executive Director of PEHSC. Discussion: It is initially noted that pursuant to Sections 1107 (10) and 1107(11) of the iciEfF s t,, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 requestor 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 requestor has truthfully disclosed all of the material facts. As Director of the Bureau of Epidemiology for DOH, you would be considered a public official /public employee subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa. S. 1102; 51 Pa. Code § 11.1. This conclusion is based upon the job�Cescription and 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; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon retiring from the Commonwealth, you would become a former public official /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 ": Hersh, 04 -574 July 26, 2004 Page 3 § 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 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. "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 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 /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, 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 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 Hersh, 04 -574 July 26, 2004 Page 4 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 /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 associated upon retirement from the Commonwealth would be DOH in its entirety. Therefore, for the first year following your retirement, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DOH. As noted above, the term "person" is defined very broadly in the Ethics Act to include private entities as well as governmental bodies. Thus, as Executive Director of PEHSC, the restrictions of Section 1103(g) would apply to you during the first year following your retirement from DOH, regardless of whether PEHSC would be considered a private employer or governmental body. See, Ledebur, Opinion 95 -007; Amica, Advice 00 -516. To the extent your job responsibilities as Executive Director of PEHSC would require you to interact with DOH in a manner that would constitute prohibited "representation," your performance of such activities would be contrary to Section 1103(g) of the Ethics Act. As noted above, the job duties of the Executive Director of PEHSC include establishing and maintaining effective working relationships with DOH and ensuring coordination of PEHSC activities with EMS (an Office of DOH). You are advised that your performance of such duties would constitute prohibited representation before your former governmental body, DOH, and would be contrary to Section 1103(g) of the Ethics Act. Based upon the submitted facts, it would appear to be impossible as a practical matter for you to perform at least certain of the functions of the position of Executive Director for PEHSC without transgressing Section 1103(g). Cf., Stanisic, Opinion 98- 004. This Advice has addressed the applicability of Section 1103(g) 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 /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the Hersh, 04 -574 July 26, 2004 Page 5 understanding that the vote, official action, or judgment of the public official /public 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. Conclusion: As Director of the Bureau of Epidemiology for the Commonwealth of Pennsylvania Department of Health ( "DOH "), you would be considered a public official /public employee subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon retiring from the Commonwealth, you would become a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The former governmental body would be DOH in its entirety. The restrictions as to representation outlined above must be followed. 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