| Advisory opinion request, submitted on behalf of Ochsner Health System and Kristy Nichols, the former Commissioner of Administration, regarding the application of the post-employment restrictions set forth in the Code of Governmental Ethics |
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Kristy Nichols served as the Commissioner of Administration from October, 2012 to October 14, 2015. During her tenure as Commissioner, Ms. Nichols oversaw the Division of Administration (DOA), which is charged with performing a wide variety of legislatively mandated activities and other required functions of state government. The DOA's responsibilities include but are not limited to developing and implementing the Executive Budget, administration of the Capital Outlay program, administration of health plans for state employees and retirees, administration of the risk management program for the State of Louisiana, and oversight of state procurement and contracting.
As part of the development of the Executive Budget, all state agencies are required to submit their budget proposals to DOA's Office of Planning and Budget on November 1st for the fiscal year that begins July 1st of the following year. All budget proposals are reviewed and evaluated by the governor and DOA for inclusion within the Executive Budget. Similarly, all requests for capital outlay must be submitted to DOA's Office of Facility Planning and Control by November 1st for review and evaluation by the governor and DOA. Both the Executive Budget and Capital Outlay Budget require legislative approval during the Regular Legislative Session, subject to the governor's line item veto authority. All budget and capital outlay requests for fiscal year 2016 - 2017 were submitted to DOA after Ms. Nichols' departure from DOA.
The Department of Health and Hospitals (DHH) has regulatory authority over many aspects of health care in the state and plays a major role in setting health care policy for the state. Annually, DHH prepares the departmental budget, including the Medicaid budget, for submission to DOA for review and inclusion in the Executive Budget.
Louisiana State University (LSU) is a health care provider and also provides direct oversight for the state's public hospital system. With the exception of Lallie Kemp Hospital, the state's public hospitals are all currently operated through public-private partnerships, which are primarily funded through the Medicaid budget. Each public-private partnership is pursuant to a cooperative endeavor agreement (CEA) negotiated by LSU in conjunction with DHH and DOA. Ms. Nichols participated in the negotiation of all current CEAs, the signatories to which include LSU, the State of Louisiana through the DOA, and DOA. In addition to providing health care services and public hospital oversight, LSU is also a major academic partner for medical education in the state with medical schools in both Shreveport and New Orleans.
Ms. Nichols commenced employment with Ochsner Health System (Ochsner) on October 19, 2015 to serve as the Vice President of Government and Corporate Affairs. In her current position with Ochsner, Ms. Nichols will be responsible for governmental relations, policy development, and business development. These responsibilities will require both executive and legislative branch communications, assisting Ochsner in evaluating state policies and their impact on Ochsner and advocating for public policies, initiatives and reimbursement strategies that promote quality patient care and support Ochsner.
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La. R.S. 42:1121A(1) prohibits a former agency head, for a period of two years following the termination of her public service as the head of such agency, from assisting another person, for compensation, in a transaction, or in an appearance in connection with a transaction, involving that agency or rendering any service on a contractual basis to or for such agency.
La. R.S. 42:1121B(1) prohibits a former public employee, for a period of two years following the termination of her public employment, from assisting another person, for compensation, in a transaction, or in an appearance in connection with a transaction in which she participated at any time during her public employment and involving her former governmental entity, or for a period of two years following termination of her public employment, rendering, any service that she had rendered to the agency during the term of her public employment on a contractual basis, regardless of the parties to the contract, to, for, or on behalf of her former agency.
La. R.S. 42:1102(2)(a)(i) defines "agency" to mean a department, office, division, agency, commission, board, committee, or other organizational unit of a governmental entity. For public servants in the twenty principal departments of the executive branch of state government, the office in which such public servant carries out his primary responsibilities; except that in the case of the secretary, deputy secretary, or undersecretary of any such department and officials carrying out the responsibilities of such department officers it shall mean the department in which he serves; and except that in the case of public servants who are members or employees of a board or commission or who provide staff assistance to a board or commission, it shall mean the board or commission.
La. R.S. 42:1102(4) defines "assist" to mean to act in such a way as to help, advise, furnish information to, or aid a person with the intent to assist such person.
La. R.S. 42:1102(23) defines "transaction involving the governmental entity" to mean any proceeding, application, submission, request for a ruling or other determination, contract, claim, case, or other such particular matter which the public servant or former public servant of the governmental entity in question knows or should know:
(a) Is, or will be, the subject of action by the governmental entity.
(b) Is one to which the governmental entity is or will be a party.
(c) Is one in which the governmental entity has a direct interest. A transaction involving the agency of a governmental entity shall have the same meaning with respect to the agency.
La. R.S. 42:1102(1) defines "action of a governmental entity" to mean any action on the part of a governmental entity or agency thereof including, but not limited to:
(a) Any decision, determination, finding, ruling, or order, including the judgment or verdict of a court or a quasi-judicial board, in which the governmental entity or any of its agencies has an interest, except in such matters involving criminal prosecutions.
(b) Any grant, payment, award, license, contract, transaction, decision, sanction, or approval, or the denial thereof, or the failure to act with respect thereto; and in which the governmental entity or any of its agencies has an interest, except in matters involving criminal prosecutions.
(c) As the term relates to a public servant of the state, any disposition of any matter by the legislature or any committee thereof; and as the term relates to a public servant of a political subdivision, any disposition of any matter by the governing authority or any committee thereof.
La. R.S. 42:1102(15) defines "participate" to mean to take part in or to have or share responsibility for action of a governmental entity or a proceeding, personally, as a public servant of the governmental entity, through approval, disapproval, decision, recommendation, the rendering of advice, investigation, or the failure to act or perform a duty.
La. R.S. 42:1102(20) defines "responsibility" to mean the direct administration or operating authority, whether intermediate or final, and either exercisable alone or with others, and either personally or through or with others or subordinates, to effectively direct action of the governmental entity, as the case may be, in respect to such transaction.
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Adopt the proposed advisory opinion.
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| Assigned Attorney: |
Haley Williams |
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