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HomeMy WebLinkAbout07-578Sharon B. Lipscomb 1015 Spring Street McDonald, PA 15057 ADVICE OF COUNSEL August 30, 2007 07 -578 Dear Ms. Lipscomb: This responds to your letters of June 30, 2007, and August 1, 2007, 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., would present any restrictions upon employment of a Health Care Coordinator following termination of employment with the Commonwealth of Pennsylvania Department of Public Welfare, Office of Developmental Programs. Facts: You are currently employed as a Health Care Coordinator with the C ommonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Office of Developmental Programs "ODP "). You have submitted copies of two documents that you state are your current job description and position description for your position with DPW. Both documents are incorporated herein by reference. It is noted that these documents list the same working title but different class titles for your position. A copy of the job classification specifications under job code 41710 has been obtained and is also incorporated herein by reference. Your job description and position description indicate that you work for a Regional Office of Mental Retardation. It is administratively noted that ODP was created within DPW in or about February 2007, through a reorganization of the Office of Mental Retardation. You state that you have accepted a position of employment with the Tuscarora Intermediate Unit ( "Tuscarora IU ") as a "Consultant for Office of Mental Retardation Statewide Supports Coordination Initiative" ( "Consultant "). In a telephone conversation with Commission staff on August 1, 2007, you confirmed that you would resign from your position with DPW if the Ethics Act would permit you to work as a Consultant for Tuscarora IU following your termination of employment with DPW. You have submitted a copy of the job description for the Consultant position with Tuscarora IU, which document is incorporated herein by reference. Per said job description, the Consultant reports to the Director of the "OMR Statewide Supports Coordination Initiative /Early Intervention Technical Assistance." The "Fundamental Duties /Essential Functions" of the Consultant include, in pertinent part: Lipscomb, 07 -578 August 30, 2007 Page 2 • Participating in the development and, when necessary, the revision of the Training and Technical Assistance Plan; • Participating in development and implementation of state technical assistance priorities, including statewide training and travel, established by the Bureau of Special Education and Office of Mental Retardation; • Developing technical assistance plans with counties annually or as needed; • Providing on -site technical assistance and training locally and statewide for Office of Mental Retardation regional and county office personnel, MH /MR County staff, service provider agencies, local community service agencies, parent groups and consumer groups; • Performing a combination of topical state and regional technical assistance activities as well as maintaining coordination of local technical assistance; • Participating in local community and state conferences, workshops and college course work as determined by the Director and the "Departments" to maintain an awareness of innovations in the field; • Traveling locally and state wide as a major part of the work scope to provide technical assistance, give presentations and attend meetings; and • Performing other tasks as assigned by the Director of Statewide Supports Coordination Initiative Early Intervention Technical Assistance and /or the "Departments" that support EITA. Per the Tuscarora IU Consultant job description, the Consultant must be able to work well and cooperate with county and "departmental" staff. The job description does not identify the specific "departments" to which it refers. The job description states that all of the enumerated duties and requirements are essential job functions, and that "Employees will be required to follow any other job related instructions and to perform any other job related duties required by their supervisor." Tuscarora IU Consultant Job Description, at 2. To further clarify your advisory request, you have also submitted a copy of an unsigned letter dated July 31, 2007, which you state was authored by Richard D. Daubert ( "Mr. Daubert"), Executive Director of Tuscarora IU. The letter indicates that you have applied for a full -time employment position with Tuscarora IU as a consultant for a statewide training system known as the "Office of Developmental Programs Consulting System," which system is administered by Tuscarora IU. The letter states that in the said consultant position, you would provide technical assistance and training to individuals and entities that provide services to individuals with intellectual disabilities. Per the letter, you would join the current staff of eight Tuscarora IU employees who provide this service on a statewide basis, and you would report to the Tuscarora IU employee who is the director of the training program. The letter states that Tuscarora IU has contracted with DPW for thirteen years to provide training and technical assistance services. The letter further states that in your position with DPW, you have not been involved in any prior negotiations of contracts or in any decisions to contract with Tuscarora IU. Finally, the letter states that in the potential position with Tuscarora IU, you would not represent Tuscarora IU in any contract negotiations or decision to contract with DPW in the future. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to your prospective employment as a Consultant with Tuscarora IU following termination of your employment with DPW. Lipscomb, 07 -578 August 30, 2007 Page 3 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. It is noted that ursuant to Sections 1107(10) and (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (111), an opinion /advice may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. As a Health Care Coordinator for DPW, ODP, 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, position description, and job classification specifications, which when reviewed on an objective basis, indicate 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 employment with DPW, 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). 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. Lipscomb, 07 -578 August 30, 2007 Page 4 "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body or other establishment in the executive, legislative or judicial branch of a state, a nation or a political subdivision thereof or any agency performing a governmental function. "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 service with the former governmental body. 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. Lipscomb, 07 -578 August 30, 2007 Page 5 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 employment with DPW would be DPW in its entirety including, but not limited to, ODP. Therefore, for the first year after termination of employment with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from being employed by Tuscarora IU following termination of employment with DPW. However, during the first year following termination of employment with DPW, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties as a Tuscarora IU employee that would involve prohibited representation before DPW as set forth above. Cf., Briechle, Opinion 04 -013 (Where a former DPW Regional Area Service Manager sought to subcontract with an Intermediate Unit to provide consulting services relative to the Intermediate Unit's training contract with the Office of Mental Retardation, Section 1103(g) would prohibit such individual from having contact or interaction with DPW that would involve acting on behalf of himself or the Intermediate Unit as to matter(s) relating to the training contract or his subcontract.) Under the submitted facts, during the first year following termination of employment with DPW, it would be impossible for you to perform some of the duties of the Consultant position without running afoul of Section 1103(g) of the Ethics Act. For example, during the one -year period of applicability of Section 1103(g), you would clearly be prohibited from providing on -site technical assistance and training locally and statewide for DPW personnel. See, Metzgar, Opinion 06 -002; Ziegler, Opinion 98 -001. The aforesaid examples should not be construed as a complete listing of the job duties of the Consultant position that would involve prohibited representation before DPW. Based upon a review of the Tuscarora IU Consultant job description, which refers to unidentified "departments," and which does not specifically indicate which duties would involve contact with DPW, it is not possible to provide a complete listing within this advisory of all of the job duties of the Consultant position that would involve prohibited representation before DPW. 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 Lipscomb, 07 -578 August 30, 2007 Page 6 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Health Care Coordinator for the Commonwealth of Pennsylvania Department of Public Welfare ( "DPW "), Office of Developmental Programs ( "ODP "), 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 termination of employment with DPW, you would become a `former public employee" subject to Section 1103() of the Ethics Act. The former governmental body would be DPW in its entirety including, but not limited to, ODP. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from being employed by Tuscarora Intermediate Unit ( "Tuscarora IU ") following termination of employment with DPW. However, during the first year following termination of employment with DPW, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties as a Tuscarora IU employee that would involve prohibited representation before DPW. Under the submitted facts, during the first year following termination of employment with DPW, it would be impossible for you to perform some of the duties of a Tuscarora IU "Consultant for Office of Mental Retardation Statewide Supports Coordination Initiative" without running afoul of Section 1103(g) of the Ethics Act. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, should employment with DPW 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 such employment. 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, Robin M. Hittie Chief Counsel