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HomeMy WebLinkAbout05-567 HogarthPatricia Brady, Director Office of Medical Assistance Programs Bureau of Lopg Term Care Programs 1401 North 7" Street Harrisburg, PA 17102 ADVICE OF COUNSEL July 27, 2005 05 -567 Re: Former Public Employee; Section 1103(g); Department of Public Welfare; Chief of Special Projects Section; Office of Medical Assistance Programs, Bureau of Long Term Care Programs; 95 -Day Annuitant Program; Independent Contractor. Dear Ms. Brady: This responds to your letter of June 23, 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 seq., presents any restrictions upon employment of a Chief of Special Projects Section following termination of service with the Department of Public Welfare. Facts: As Director of the Department of Public Welfare ( "DPW "), Office of Medical Assistance Programs, Bureau of Long Term Care Programs, you and a former DPW employee, Suzanne P. Hogarth ("Hogarth"), seek a joint advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. After approximately 27 years, Hogarth retired from her position with the Commonwealth as Chief of the Special Projects Section in the Office of Medical Assistance Programs, Bureau of Long Term Care Programs. You have submitted a copy of Hogarth 's prior job description, which is incorporated herein by reference. Since August 2004, Hogarth has led the Medicaid Service Assurance Initiative Work Group in developing a Request for Proposals ( "RFP ") to contract with an outside entity with the responsibility to design, develop, implement, operate, and maintain an automated time and attendance and invoicing system to be used by the Medicaid Program. DPW is currently reviewing the RFP internally and is planning to issue it in the beginning of August 2005, with a potential contract in place by October 1, 2005. Brady 05 -567 July 27, 2005 Page 2 You state that DPW is interested in employing Hogarth through an existing contractual agreement with Myers and Stauffer. Hogarth would serve as the Project Manager of the Medicaid Service Assurance Initiative. As Project Manager, Hogarth's job responsibilities would include the following: developing a contract - monitoring plan designed to ensure that the contractor complies with all the requirements of the Statement of Work and other provisions of the contract; working with the vendor to ensure that all requirements /components of the contract are implemented, including: general requirements, quality assurance and back -up system support, data collection and management, claim submission, training, reporting, coordination with the Coalition Team, coordination with the Advisory Group, and development of performance indicators; acting as point person for all vendor issues concerning program and systems implementation; conducting on -site visits and other quality assurance activities identified in the contract monitoring plan; reviewing progress reports from the vendor and advising the Project Officer of any problem or controversies; providing status reports to the Executive Management Team as well as the Steering Committee regarding the project with attention to major milestones and deadlines for deliverables; alerting appropriate personnel, including the Project Officer, of any problems that may have a negative impact on the project; establishing and maintaining an organized contract administration file to record all contractor and government actions (including contract documents, correspondence, emails and file notes) pertaining to the contract; before final payment, measuring the work performed against the work statement and determining if performance does not meet contract requirements, identifying deficiencies and advising the Project Officer so remedial action can be taken before final payment is made; preparing a final evaluation of the contractor's performance and forwarding it for inclusion with the agency's record copy of the contract; coordinating activities with the Robert Wood Johnson contractor hire to evaluate the demonstration, and ensuring the Project Officer is aware of data needs for cost /benefit analysis; and coordinating with the Office of Information Systems regarding the Advanced Planning Document for submission to the Center for Medicare and Medicaid Services. You state that Hogarth's decision to retire from her Commonwealth position predated DPW's determination that she is the best candidate to be employed as the Service Assurance Project Manager. You further state that DPW's decision as to Hogarth has no relation to her retirement from Commonwealth service. You note that as the Service Assurance Project Manager, all of Hogarth's duties would serve to represent and protect the interests of DPW and the Commonwealth, and no other private entity or entities. Based upon the foregoing facts, you ask whether Hogarth may accept employment as the Service Assurance Project Manager 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 Chief of the Special Projects Section in the Office of Medical Assistance Programs, Bureau of Long Term Care Programs for the Department of Public Welfare ( "DPW "), Hogarth 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, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the Brady 05 -567 July 27, 2005 Page 3 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, Hogarth became a "former public Employee or Official" 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. "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 Brady 05 -567 July 27, 2005 Page 4 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. The governmental body with which Hogarth would be associated upon termination of public service would be DPW in its entirety including, but not limited to, the Special Projects Section in the Office of Medical Assistance Programs, Bureau of Long Term Care Programs. Therefore, for the first year after termination of service with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. Having set forth the above general principles, the specific activity which you have proposed shall be addressed. You state that DPW is interested in employing Hogarth through an existing contractual agreement with Myers and Stauffer to serve as the Project Manager of the Medicaid Service Assurance Initiative. However, it is not clear whether Hogarth would be: (1) performing such services for compensation under the 95 -day program which allows annuitants to work up to 95 days per fiscal year under certain conditions (see, 71 Pa.C.S. § 5706(a.1); McGlathery, Opinion 00 -004); or (2) performing such services for compensation as an independent contractor. Each of these arrangements shall be considered. First, based upon the assumptions that in performing these duties, Hogarth would continue to meet the criteria for status as a "public employee" and that she would otherwise qualify for participation in the program, Section 1103(g) of the Ethics Act Brady 05 -567 July 27, 2005 Page 5 would not preclude Hogarth from performing such services for compensation under the aforesaid 95 -day program which allows annuitants to work up to 95 days per fiscal year. Section 1103(g) does not prohibit the rehiring of the former public employee provided that a true public employment relationship exists. See, McGlathery, supra; Long, Opinion 97 -010; Confidential Opinion, 93 -005. However, each time Hogarth would enter the 95 -day program, she would become a "public employee" again, and each time she would terminate her service under that program, she would once again became a former public employee subject to the restrictions of Section 1103(g). McGlathery, Opinion 00 -004. You are cautioned that the restrictions of Section 1103(g) would apply for a full one -year period each time Hogarth would become a former public employee. Id. Thus, as a result of participation in the 95 -day program, the one -year period of applicability of Section 1103(g) would begin anew each time Hogarth would terminate participation in the 95 -day program. Second, you are advised that Section 1103(g) of the Ethics Act would preclude Hogarth from performing such services for compensation as an independent contractor. To perform such services as an independent contractor would transgress Section 1103(g) because it would necessarily involve prohibited representation before Hogarth's former governmental body (for example, through personal appearances before Hogarth's former governmental body or the submission of written documents containing her name to DPW staff members). See, Confidential Opinion, 97 -008; Confidential Opinion, 97 -007; Confidential Opinion, 93 -005. 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 the Chief of Special Projects Section in the Office of Medical Assistance Programs, Bureau of Long Term Care Programs for the Department of Public Welfare ( "DPW "), Hogarth would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with DPW, Hogarth became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is DPW in its entirety including, but not limited to, the Special Projects Section in the Office of Medical Assistance Programs, Bureau of Long Term Care Programs. 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. Brady 05 -567 July 27, 2005 Page 6 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 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