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HomeMy WebLinkAbout06-508 Metzgar, Jr.Joseph T. Metzgar, Jr. RR #1, Box 207 Altoona, PA 16601 ADVICE OF COUNSEL January 13, 2006 Re: Former Public Employee; Section 1103(g); Auditor Welfare, Bureau of Long Term Care Programs, Division Dear Mr. Metzgar: This responds to your letter of December 23, 2005, advice from the State Ethics Commission. 06 -508 II; Department of Public of Nursing Home Rates. by which you requested Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any restrictions upon employment of an Auditor 11 following termination of service with the Commonwealth of Pennsylvania Department of Public Welfare, Bureau of Long Term Care Programs, Division of Nursing Home Rates. Facts: You are currently employed as an Auditor 11 with the Commonwealth of Pennsylvania ( "Commonwealth ") Department of Public Welfare ( "DPW ") within the Bureau of Long Term Care Programs, Division of Nursing Home Rates. You seek an advisory as to the post - employment restrictions of the Ethics Act that would apply to you upon your retirement from the Commonwealth. You state that as an Auditor 11 for DPW, you audit the filed Medical Assistance Cost Reports ("MA-11") for compliance with Pennsylvania regulations. Pennsylvania long term care nursing homes are required to file these cost reports to document their requests for reimbursement for costs incurred in caring for Pennsylvania Medical Assistance ( "MA ") residents in their facilities. You have submitted a copy of your job description, which is incorporated herein by reference. You have accepted an offer of employment in the private sector with " Avysion." Avysion is a minority subcontractor of Pennhurst Medical Group, P.C., which provides contract nurses and contract Financial Representatives to DPW 's Bureau of Long Term Care, Division of Provider Services. You state that the contracted nurses review the medical charts of all MA residents in the Pennsylvania long term care nursing homes to ensure proper medical care is provided to the MA residents as required. The Financial Representative accompanies the nurses to the long term care nursing homes and reviews the nursing homes' billings to the Commonwealth for the care of MA residents in their facilities in order to recoup all overpayment made to the nursing homes by the Commonwealth. The particular employment position that you have accepted with Metzger, 06 -508 January 13, 2006 Page 2 Avysion is as a Financial Representative working at the Hollidaysburg Field office of the Division of Provider Services. The employment offer is conditioned upon your retiring from the Commonwealth prior to commencing this new job. You note that the Division of Provider Services and the Division of Nursing Home Rates are "independent divisions." You state that in your thirty -three (33) years of Commonwealth employment, you have never been part of any type of contract or negotiations with the Commonwealth nor have you had any dealings or involvement with Avysion, Pennhurst Medical Group, P.C. or any related party of either of the aforesaid entities. It is noted that you have submitted copies of the following documents: job description(s) for the Financial Representative position; a document identified as "Exhibit A — Special Terms and Conditions," which you indicate is part of the contract between the Commonwealth and Pennhurst Medical Group, P.C.; and a December 23, 2005, e -mail from Ms. Donna Snyder of Avysion to you regarding Avysion's subcontract with Pennhurst Medical Group, P.C. 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. As an Auditor II with the Department of Public Welfare ( "DPW "), Bureau of Long Term Care Programs, Division of Nursing Home Rates, 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, 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 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 would become 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). Metzger, 06 -508 January 13, 2006 Page 3 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 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 Metzger, 06 -508 January 13, 2006 Page 4 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 deemed to have been associated upon termination of public service would be DPW in its entirety, including, but not limited to, the Bureau of Long Term Care Programs, Division of Nursing Home Rates. 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. Based upon the submitted facts, it appears that in your prospective employment position as a Financial Representative with Avysion, you would be working out of a DPW office, specifically, the Hollidaysburg Field office of the Division of Provider Services. The Division of Provider Services is part of DPW. You are advised that it would be impossible for you to perform the functions of a Financial Representative employed by Avysion working out of a DPW office without engaging in prohibited representation before DPW in contravention of Section 1103(g) of the Ethics Act. The fact that the Division of Nursing Home Rates and the Division of Provider Services are independent of each other is irrelevant. During the first year following your retirement from the Commonwealth, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in prohibited representation before DPW in its entirety. See, Ziegler, Opinion 98 -001. 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: As an Auditor 11 with the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Bureau of Long Term Care Programs, Division of Nursing Home Rates, you would be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon retiring from DPW, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DPW in Metzger, 06 -508 January 13, 2006 Page 5 its entirety, including, but not limited to, the Bureau of Long Term Care Programs, Division of Nursing Home Rates. The restrictions as to representation outlined above must be followed. It would be impossible for you to perform the functions of a Financial Representative employed by Avysion working out of a DPW office without engaging in prohibited representation before DPW in contravention of Section 1103(g) of the Ethics Act. The fact that the Division of Nursing Home Rates and the Division of Provider Services are independent of each other would not alter this conclusion. Section 1103(g) would apply to restrict you from engaging in prohibited representation before DPW in its entirety. 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 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