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HomeMy WebLinkAbout05-532 HudspathCarol A. Hudspath 3716 Longview Road Hermitage, PA 16148 ADVICE OF COUNSEL April 12, 2005 05 -532 Re: Former Public Employee; Section 1103(g); Health Facility Quality Examiner - Nurse; Department of Health. Dear Ms. Hudspath: This responds to your faxed letter of March 14, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et se q., presents any restrictions upon employment of a Health Facility Quality Examiner (HFQE) -Nurse following termination of service with the Commonwealth of Pennsylvania Department of Health. Facts: On January 7, 2005, you retired from Commonwealth employment as a Health Facility Quality Examiner (HFQE) -Nurse (State Inspector for nursing homes) with the Department of Health ( "DOH'), Division of Nursing Care Facilities. Copies of your job description, performance standards, and job classification specifications have been submitted relative to your request, all of which documents are incorporated herein by reference. Having retired, you would like to pursue the following two opportunities. First, you would like to become an independent consultant for nursing homes providing services that would include mock surveys, abuse and dietary inservices, survey readiness in relation to the survey process and protocols referencing State and Federal Long Term Care regulations, staff development, nurse aide training, and preparation for occupancy surveys. In addition to the above, you would like to be employed by Nubridge Development, Inc. ( "Nubridge ") as a part -time Nurse Aide Instructor and a QA Nurse. You note that Nubridge oversees two nursing homes. You state that the consulting and inservices that you would provide would encompass the survey process and protocol with State and Federal Regulations, which are public information available on the web. You further state that both as an independent consultant and as a Nubridge employee, you would not submit any reports to DOH, Division of Long Term Care. Hudspeth, 05 -532 April 12, 2005 Page 2 You state your belief that in providing such services, you would enrich the lives of the elderly living in Long Term Care Facilities and positively impact the training of Nurse Aides caring for those in nursing homes. Based upon the foregoing facts, you ask whether you may engage in the above - described activities without transgressing the Ethics Act. 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 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. In the former capacity as a Health Facility Quality Examiner -Nurse for DOH, you would be 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 job description 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 termination of public service, 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. Hudspeth, 05 -532 April 12, 2005 Page 3 "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 himself, 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, 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 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 ublic 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. Hudspeth, 05 -532 April 12, 2005 Page 4 The governmental body with which you have been associated upon termination of public service is DOH in its entirety including, but not limited to, the Division of Nursing Care Facilities. Therefore, for the first year after termination of service with DOH, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DOH. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that although the Ethics Act would not prohibit you from becoming an independent consultant for nursing homes and a part -time Nurse Aide Instructor and QA Nurse for Nubridge, to the extent your responsibilities in such capacities 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. Based upon the facts that have been submitted, 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 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as a Health Facility Quality Examiner -Nurse with the Commonwealth of Pennsylvania Department of Health ( "DOH "), you would be considered a "public employee" as that term is defined in the Public Official and Employee Ethics Act ("Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with DOH, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is DOH in its entirety including, but not limited to, the Division of Nursing Care Facilities. 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 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 Hudspeth, 05 -532 April 12, 2005 Page 5 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