~.. ;. 1 ~ '''''''. ::OIl "'<. COMMISSIONERS Brig Gen (R) Edward F. Crowell (USAF), Chair V. Larkin Martin, Vice-Chair James Jerry Wood, Esq. Stewart Hill Tankersley, M.D. Jerry L. Fielding, Ret. Sf. Circuit Judge STATE OF ALABAMA ETHICS COMMISSION MAILING ADDRESS STREET ADDRESS P.O. BOX 4840 RSAUNION MONTGOMERY, AL 100 NORTH UNION STREET 36103-4840 SUITE 104 MONTGOMERY, AL 36104 August 5, 2015. ;. ~. Thomas B. Albritton Director TELEPHONE (334) 242-2997 FAX (334) 242-0248 WEB SITE: www.ethics.alabama.gov ADVISORY OPINION NO. 2015-13 Donald E. Williamson, MD 8113 Lichfield Ct. Montgomery, Alabama 36117 Revolving Door/Former State Health Officer Accepting Employment With The Alabama Hospital Association (ALaHA) As the Alabama Hospital Association (ALaHA) is not regulated by the Alabama Department of Public Health or the State Health Officer, the State Health Officer may accept employment with the Alabama Hospital Association, For a period of two years after leaving the Alabama Department of Public Health, the former State Health Officer may not represent clients, including his employer, the Alabama Hospital Association, back before the Alabama Department of Public Health, As at all times relevant to this opinion, while serving on the Medicaid Task Force, the State Health Officer was an employee of the Alabama Department of Public Health, there is no prohibition in Dr- Williamson representing the Alabama Hospital Association before the Medicaid Agency, Even though members of the State Committee of Public Health also serve on the Medical Association of Alabama, the
Page two fact that they are serving in a different capacity while performing functions for the Medical Association of Alabama (MASA) does not prohibit Dr. Williamson from representing the Alabama Hospital Association before the Medical Association. Due to the fact that once a year when they are in session, the Medical Association serves as the State Board of Health, Dr. Williamson may not represent the Alabama Hospital Association before the Medical Association of Alabama for the two hour annual period when they are serving as the State Board of Health. Dear Dr. Williamson: The Alabama Ethics Commission is in receipt of your request for a formal Advisory Opinion of this Commission, and this opinion is issued pursuant to that request. QUESTIONS PRESENTED 1) May the State Health Officer accept the position of CEO/President of the Alabama Hospital Association (ALaHA) provided that he does not represent ALaHA before the Alabama Department of Public Health (ADPH) for a period of two years and that he does not participate in the negotiation or approval of any contracts between ALaHA and ADPH for that same two years? 2) May the State Health Officer represent ALaHA before Medicaid since at all times he was an employee of Public Health and did not negotiate or approve any contracts between Medicaid and ALaHA? 3) Finally, may the State Health Officer represent ALaHA with the Medical Association of Alabama (MASA)? MASA is the State Board of Health when they meet in annual session for only two hours each year. FACTS AND ANALYSIS The facts as have been provided to this Commission are as follows:
Page three Dr. Don Williamson currently serves as the State Health Officer. He has overall supervisory responsibility for licensing and inspecting certain healthcare facilities in Alabama, including hospitals. He has been an employee of the Alabama Department of Public Health (ADPH) in excess of29 years, and for almost 23 years, he has served the State of Alabama as both the State Health Officer and Director of ADPH. He is considering retiring between September 30,2015 and November 30, 2015. The Alabama Hospital Association (ALaHA) is a statewide trade organization that assists its member hospitals in effectively serving the healthcare needs of Alabama through advocacy, representation, education and service. While the ADPH licenses individual hospitals, it does not regulate or license ALaHA. The ADPH does work with ALaHA as they do with other trade associations and stakeholder entities on issues of mutual concern such as trauma, disaster preparedness, disease outbreaks and regulatory issues affecting licensed hospitals. The ADPH has also contracted with ALaHA to serve as a subcontractor to provide equipment and assistance to individual hospitals in furtherance of contract objectives. The contractual interaction between ADPH and ALaHA has been handled by the staff of the ADPH and not by Dr. Williamson. While the ADPH works with ALaHA, it has no regulatory control over the association. The ADPH has an internal audit department which audits contract compliance with ALaHA. This is done entirely by the internal audit department of ADPH and there's no input or involvement by Dr. Williamson in this process. At the request of Governor Robert Bentley, Dr. Williamson recently served as Chair of Alabama's Medicaid Transition Taskforce. In this capacity, for slightly in excess of three years, he remained an employee of ADPH, however, portions of his compensation were reimbursed to ADPH by Medicaid based on appropriate time allocations. As Chairman of this Taskforce, he helped lead the transformation of the Medicaid Agency and the restructuring of the healthcare delivery system. Medicaid also works with ALaHA on legislative, funding and regulatory issues affecting Alabama hospitals. However, Medicaid does not have any regulatory authority or control over ALaHA and Dr. Williamson has not negotiated or signed any contracts between ALaHA and Medicaid, or participated in the audit of any contracts between them. The Alabama Ethics Law, Code of Alabama, 1975, Section 36-25-1(27) defines a public official as: "Any person elected to public office, whether or not that person has taken office, by the vote of the people at state, county, or municipal level of government or their instrumentalities, including governmental corporations, and any person appointed to a position at the state, county, or municipal level of government or their instrumentalities,
Page four including governmental corporations. For purposes of this chapter, a public official includes the chairs and vice-chairs or the equivalent offices of each state political party as defined in Section 17-16-2." Section 36-25-5(a) states: "No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain." Section 36-25-5(c) states: " 0 public official or public employee shall use or cause to be used equipment, facilities, time, materials, human labor, or other public property under his or her discretion or control for the private benefit or business benefit of the public official, public employee, any other person, or principal campaign committee as defined in Section 17-22A-2, which would materially affect his or her financial interest, except as otherwise provided by law or as provided pursuant to a lawful employment agreement regulated by agency policy. Provided, however, nothing in this subsection shall be deemed to limit or otherwise prohibit communication between public officials or public employees and eleemosynary or membership organizations or such organizations communicating with public officials or public employees." Section 36-25-13(b) states: "Notwithstanding the provisions of subsection (a) of this section, no public official elected to a term of office shall serve for a fee as a lobbyist or otherwise represent clients, including his or her employer, before the board, agency, commission, department, or legislative body of which he or she is a former member for a period of two years following the term of office for which he or she was elected, irrespective of whether the member left the office prior to the expiration of the term to which he or she was elected. For the purposes of this subsection, such prohibition shall not include a former member of the Alabamajudiciary who as an attorney represents a client in a legal, non-lobbying capacity."
Page five Section 36-2S-13(e) states: "No public official or public employee who personally participates in the direct regulation, audit, or investigation of a private business, corporation, partnership, or individual shall within two years of his or her departure from such employment solicit or accept employment with such private business, corporation, partnership, or individual." The "Revolving Door" provisions of the Ethics Law were designed to put certain limitations on certain public officials and public employees when they leave the public sector. The "Revolving Door" is not designed to prohibit employment; it merely prohibits employment in those circumstances where a public official or public employee has personally participated in the direct regulation, audit or investigation of a private entity, giving them a certain degree of leverage. The prohibition extends for two years after the individual has left the public sector or where at least two years has elapsed since the individual was involved in the regulatory activity. To address the potential issue raised by Section 5(a), it is important to point out that ALaHA contacted Dr. Williamson on numerous occasions encouraging him to apply for the position of Director. The record reflects a series of phone calls from Jake Barto to Dr. Williamson concerning their interest in him applying for the position. The record further indicates that on numerous occasions, uncertain of his interest, Dr. Williamson did not return the calls. Therefore, there is no evidence before the Commission that Dr. Williamson used his position or the influence of his position to obtain this opportunity with ALaHA. As the Alabama Department of Public Health does not regulate ALaHA, there is no prohibition in Dr. Williamson accepting employment with ALaHA, provided, that he not, for a period of two years, represent ALaHA in dealings back with the Alabama Department of Public Health. While there is an indication that there have been certain contracts entered into between the Alabama Department of Public Health and ALaHA, it is also clear that Dr. Williamson played no role in those contracts, but that they were overseen and handled by ADPH staff and Dr. Williamson did not personally participate in the audit of any contract. As relates to question number two, at all times, Dr. Williamson has been an employee of the Alabama Department of Public Health and not an employee of Medicaid, even though he was assigned to the task force related to the transformation of Medicaid and the restructuring of healthcare delivery systems. On December 3, 2014, the Commission rendered Advisory Opinion No. 2014-08. That opinion stated:
Page six "A state employee, who was employed by and paid through the Department of Homeland Security, but assigned to assist the Alabama Medicaid Agency may, upon his retirement, return as a retired state employee to the Alabama Medicaid Agency and be paid directly through Medicaid." Critical to that opinion was the fact that, at all times, the employee, while performing services for Medicaid was an employee of the Department of Homeland Security, received his pay from the Department of Homeland Security, etc. In comparison to this scenario, at all times, Dr. Williamson has been an employee of the Alabama Department of Public Health and not an employee of the Medicaid Agency; therefore, there is no prohibition in Dr. Williamson representing the Alabama Hospital Association before the Medicaid Agency. Somewhat more complicated is question number three, whereby Dr. Williamson asks whether he may represent the Alabama Hospital Association before the Medical Association of the State of Alabama. The State Committee of Public Health has 12 MDs among its membership who by virtue of their medical license also serve on the Medical Association governing body, as well as serving on the Board of Medical Examiners. While some of the same individuals serve on all of these bodies, their functions are different under each of the three circumstances and there is no overlap. Section 22-2-1 states that: "The Medical Association of the State of Alabama as constituted under the laws now in force or which hereafter may be in force, is the State Board of Health." Section 22-2-4 states that: "There is hereby created a State Committee of Public Health which shall be composed of 12 members of the Board of Censors of the Medical Association of the State of Alabama and the Chairman of the four councils which are created in Section 22-2-9. The medical doctor members of the committee shall be selected by the State Board of Health... " Dr. Williamson sets out that once a year when they meet in annual session for a two-hour period, the Medical Association of Alabama is the State Board of Health. To provide ongoing supervision, the Legislature created the State Committee of Public Health that meets monthly and is the governing authority for the ADPH. Twelve of the members of the State
Page seven Committee of Public Health are selected by the Medical Association also commonly serve on MASA's Board of Directors. of Alabama (MASA) and Regardless of the fact that MASA includes 12 MDs who also serve on the State Committee of Public Health, when they are serving as MASA members, they are serving in a different capacity. Therefore, while Sections 36-25-13(a) and (c) would prohibit Dr. Williamson from representing the Hospital Association before the State Committee of Public Health, they would not prohibit him from representing the Hospital Association before MASA. However, Dr. Williamson may not represent the Hospital Association before MASA during the time they are in session and serving as the State Board of Health. CONCLUSION As the Alabama Hospital Association (ALaHA) is not regulated by the Alabama Department of Public Health or the State Health Officer, the State Health Officer may accept employment with the Alabama Hospital Association. For a period of two years after leaving the Alabama Department of Public Health, the former State Health Officer may not represent clients, including his employer, the Alabama Hospital Association, back before the Alabama Department of Public Health. As at all times relevant to this opinion, while serving on the Medicaid Task Force, the State Health Officer was an employee of the Alabama Department of Public Health, there is no prohibition in Dr. Williamson representing the Alabama Hospital Association before the Medicaid Agency. Even though members of the State Committee of Public Health also serve on the Medical Association of Alabama, the fact that they are serving in a different capacity while performing functions for the Medical Association of Alabama (MASA) does not prohibit Dr. Williamson from representing the Alabama Hospital Association before the Medical Association. Due to the fact that once a year when they are in session, the Medical Association serves as the State Board of Health, Dr. Williamson may not represent the Alabama Hospital Association before the Medical Association of Alabama for the two hour annual period when they are serving as the State Board of Health.
Page eight AUTHORITY By 3-0-2 vote of the Alabama Ethics Commission on August 5, 2015. ~~r--(-t-is-a.-lf-)- Chair Alabama Ethics Commission