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HomeMy WebLinkAbout06-538 RoanMatthew Roan 935 N. 3 S treet Rear Harrisburg, PA 17102 ADVICE OF COUNSEL April 3, 2006 06 -538 Re: Former Public Employee; Section 1103(g); Legislative Specialist II; Department of Public Welfare. Dear Mr. Roan: This responds to your letter of March 3, 2006 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1rC:S. 1101 et seq., presents any restrictions upon employment of a Legislative Specialist II following termination of service with the Department of Public Welfare. Facts: On March 24, 2006, you plan to leave your position with the Department of Public Welfare (DPW) as a Legislative Specialist 11. You have submitted a copy of your job description, which is incorporated herein by reference. In your current _position as Legislative Specialist 11 with DPW your responsibilities center on the Office of Medical Assistance Programs and the Office of Mental Health and Substance Abuse Services that include: tracking current and pending legislation and determining potential impact on your designated program areas; attending committee - hearings and informational sessions; organizing briefings for Tegislators and their staff; and responding to inquiries from the tienerdl Assembly on both legislative issues and constituent specific casework. You have accepted a position with McKesson Health Solutions (McKesson) as a Deputy Administrator. You have submitted a copy of the job description, which is incorporated herein by reference. McKesson is a company . that provides healthcare services focusin on disease and management solutions to either private or governmental entities. The Deputy Adm performs a variety of account management functions including but not limited to the following: overseeing deliverables of services; managing cus omer service; maintaining rela ionships with senior staff, elected officials and community stakeholders; and facilitating resolution of client issues related to McKesson services. Based upon the foregoing facts, you seek an advisory under the Ethics Act regarding accepting employment and performing duties for McKesson. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the ttnics 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 he 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 thaf have not Roan, 06 -538 April 3, 2006 Page 2 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 a Legislative Specialist 11 for DPW, 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 cl 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/publicemployee 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 employee has been associated": § 1103. Restricted activities (g) Former official or employee. - -No former public official or public employee shall represent a erson, with promised or actual compensation, on any matter e ore the governmental body with which he has been associated one year atter 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 n y activity which includes, but is not limited to, the 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 w 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 emplo — m yee self, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 - UU /. The term "representation" is also broad) defined to prohibit acting on behalf of any person in any activit . Examples of prohibited representation include: (1) personal appearances betore 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 Roan, 06 -538 April 3, 2006 Page 3 the former public official /public employee; (4) participating in any matters before the former ggovernmental body as to acting on behalf of a person; and (5) lobbying. Popovicfi, 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 (q) 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 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 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 articular 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 9U - UUb; bharp, opinion 9U UU9 - The governmental body with which you would be associated upon termination of public service would be DPW in its entirety. 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. In your case, although Section 1103(g) of the Ethics Act would not prohibit you from obtaining employment with McKesson, that provision of the Ethics Act would restrict your conduct so that You may not engage in any activity in your new position with McKesson vis -a -vis DPW that would constitute prohibited representation, as delineated above, before DPE for one year after termination of service. Based upon the facts which 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) oft 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. Conclusion: As a Legislative Specialist 11 with DPW, you] 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, you would Roan, 06 -538 April 3, 2006 Page 4 become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be DPW 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 terminat 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 (3U) da of the date of tins 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 (71T -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