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HomeMy WebLinkAbout08-548 KERNKaren E. Rismiller, Esquire Union Street Station 103 East Union Street Pottsville, PA 17901 Dear Ms. Rismiller: ADVICE OF COUNSEL May 2, 2008 08 -548 This responds to your letter dated April 14, 2008, and the letter of Barbara T. Kern "Ms. Kern ") dated March 26, 2008, requesting an advisory from the Pennsylvania State Ethics Commission. Issue: Whether, in the former capacity as an Educational Statistics Supervisor with the Commonwealth of Pennsylvania, Department of Education ( "Department of Education "), Ms. Kern would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission, such that upon leaving — Commonwealth employment, Ms. Kern would be subject to the restrictions of Section 1103(g) of the Ethics Act pertaining to former public officials /public employees. Facts: As Ms. Kern's legal representative, you request an advisory from the Pennsylvania State Ethics Commission on her behalf. The advisory request is based upon submitted facts that may be fairly summarized as follows. On June 23, 2007, Ms. Kern retired from her position as an Educational Statistics Supervisor with the Division of Data Services within the Department of Education. As an Educational Statistics Supervisor, Ms. Kern's primary responsibilities were to collect elementary, secondary, and postsecondary data while providing supervision to a staff of five Educational Statistics Associates who collected, edited and compiled reports of such data for various agencies. Ms. Kern submitted a copy of her official Department of Education position description, which is incorporated herein by reference. A copy of the job classification specifications for an Educational Statistics Supervisor (job code 24530) has been obtained and is also incorporated herein by reference. Per the submitted position description, Ms. Kern's duties and responsibilities included the following: • Planning, developing, and supervising programs for the collection, analysis, and presentation of elementary, secondary, and postsecondary education data; Rismiller /Kern, 08 -548 May 2, 2008 Page 2 • Supervising a unit consisting of professional and technical staff engaged in the collection, editing, analysis, and presentation of elementary, secondary, and postsecondary education data; • Completing various statistical studies in such areas as student enrollment, graduates, salaries, finances, and other elements of elementary, secondary, and postsecondary education which are necessary for planning and executing educational programs and for supporting the allocation of funds; • Supervising the preparation of reports based upon projects assigned to subordinates for presentation in periodicals and other publications; • Serving as the state's Integrated Postsecondary Education Data System (IPEDS) coordinator for the collection, editing, and transmission of data between postsecondary education institutions and the U.S. Department of Education; • Providing appropriate data and preparing responses to correspondence from the Secretary of Education's office, other offices under the Secretary, the Governor's Office, the legislature, and other educational agencies for the purpose of establishing educational policy; • Participating in the determination and presentation of projections of selected education data; • Supporting strategic planning activities; • Designing, with appropriate staff, electronic data collection tools; and • Performing management responsibilities such as signing leave slips, conducting employment interviews, assigning and reviewing work, and administering discipline as necessary. Position Description, at 1 -2. Per the job classification specifications under job code 24530, the duties and authority of an Educational Statistics Supervisor include, inter alia: • Supervising a group of specialists engaged in the collection, analysis, and presentation of educational data encompassing both basic and higher education programs; • Planning, developing, and supervising a program for the collection, analysis, and presentation of educational data encompassing basic education and higher education; • Providing the department, Governor's Office, legislature and educational agencies with data necessary for establishing educational policy; • Supervising the preparation of reports from statistical projects for presentation in professional journals, periodicals, and other publications; and • Preparing cost estimates of legislative bills which will have a financial impact on educational programs. Job Classification Specifications, at 1. Rismiller /Kern, 08 -548 May 2, 2008 Page 3 In Ms. Kern's letter of March 26, 2008, Ms. Kern stated that she was seeking an official ruling regarding her ability to contract to perform services for the Pennsylvania Department of Education. However, Ms. Kern further indicated that she had been asked to contract through Berks County Intermediate Unit to aid in the data collection of the new "Pelican System" developed by the Office of Child Development and Early Learning, Departments of Education and Public Welfare. Ms. Kern further stated that this contract would begin as soon as possible. In your letter dated April 14, 2008, you stated that Ms. Kern advised you that on or about March 25, 2008, she was contacted by Linda Warren of the Department of Education, who asked whether Ms. Kern would be interested in contracting with the Berks County Intermediate Unit. You stated that from March 2008 forward, Ms. Kern did not have any discussions with Ms. Warren or with Todd Klunk, an employee of the Office of Child Development and Early Learning, Departments of Education and Public Welfare, as to the specific job duties or issues that are facing the Berks County Intermediate Unit. You further stated that there has been no communication between Ms. Kern and anyone in the Department of Education and /or the Office of Child Development and Early Learning. Based upon the above submitted facts, the following questions have been posed: 1. Whether, in her former position as an Educational Statistics Supervisor, Ms. Kern was a "public employee" as the Ethics Act defines that term, such that Ms. Kern would now be considered a former "public employee" subject to Section 1103(g) of the Ethics Act; and 2. Whether and to what extent the Ethics Act would impose any restrictions upon Ms. Kern that would affect her ability to accept a contract with Berks County Intermediate: (a) to aid in the data collection of the new Pelican System developed by the Office of Child Development and Early Learning, Departments of Education and Public Welfare; or (b) for a similar project, including but not limited to restrictions on the location at which Ms. Kern could carry out such a project, restrictions on the types of meetings /contacts that Ms. Kern could have, and the timeframe during which such restrictions would be applicable. 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 further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may, and shall be, addressed. In the instant matter, the initial question to be addressed is whether, in her former position with the Department of Education, Ms. Kern would be considered a "public employee" subject to the Ethics Act. Rismiller /Kern, 08 -548 May 2, 2008 Page 4 The Ethics Act defines the term "public employee" as follows: §1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa.C.S. §1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. Rismiller /Kern, 08 -548 May 2, 2008 Page 5 51 Pa. Code §11.1. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superinten- dents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. Rismiller /Kern, 08 -548 May 2, 2008 Page 6 The following terms are relevant to your inquiry and are defined in the Ethics Act as follows: § 1102. Definitions "Ministerial action." An action that a person performs in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of the persons own judgment as to the desirability of the action being taken. "Nonministerial actions." An action in which the person exercises his own judgment as to the desirability of the action taken. 65 Pa.C.S. § 1102. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act's definition of the term "public employee" and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsylvania has specifically considered and approved the Commission's objective test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision - makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05- 005. In applying the objective test in the instant matter, the necessary conclusion is that, in her former capacity as an Educational Statistics Supervisor with the Department of Education, Ms. Kern would be considered a "public employee" subject to the Ethics Act. As an Educational Statistics Supervisor, Ms. Kern had the ability to take or recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following duties set forth in the position description and job classification specifications would be sufficient to establish status as a "public employee" subject to the Ethics Act: • Planning, developing, and supervising programs for the collection, analysis, and presentation of elementary, secondary, and postsecondary education data; • Supervising a unit consisting of professional and technical staff engaged in the collection, editing, analysis, and presentation of elementary, secondary, and postsecondary education data; Rismiller /Kern, 08 -548 May 2, 2008 Page 7 • Serving as the state's Integrated Postsecondary Education Data System (IPEDS) coordinator for the collection, editing, and transmission of data between postsecondary education institutions and the U.S. Department of Education; • Performing management responsibilities such as signing leave slips, conducting employment interviews, assigning and reviewing work, and administering discipline as necessary; • Providing the department, Governor's Office, legislature and educational agencies with data necessary for establishing educational policy; and • Preparing cost estimates of legislative bills which will have a financial impact on educational programs. The foregoing activities would also meet the criteria for determining Ms. Kern's status as a public employee under the Regulations of the State Ethics Commission, specifically at 51 Pa. Code § 11.1, "public employee," subparagraphs (i) and (ii). Consequently, upon her retirement from Commonwealth employment, Ms. Kern became a "former public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act restricts 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. "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 Rismiller /Kern, 08 -548 May 2, 2008 Page 8 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 if the invoices pertain to a contract that existed prior to termination of service with such 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. 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 Ms. Kern is deemed to have been associated upon retirement from Commonwealth employment (the "former governmental body ") is the Department of Education in its entirety, including but not limited to the Division of Data Services. Therefore, for the first year following Ms. Kern's retirement from the Department of Education, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Department of Education. Turning to the second specific inquiry, you are advised as follows. Rismiller /Kern, 08 -548 May 2, 2008 Page 9 Under the submitted facts, Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from accepting a contract with the Berks County Intermediate Unit: (1) to aid in the data collection of the new Pelican System developed by the Office of Child Development and Early Learning, Departments of Education and Public Welfare; or (2) for a similar project, subject to the conditions that in so doing, Ms. Kern would not enter into a contract with the Department of Education and would not otherwise engage in prohibited representation before the Department of Education. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. During the first year following her retirement from the Department of Education, Section 1103(g) of the Ethics Act would prohibit Ms. Kern from performing any activities as a contractor that would involve prohibited representation before the Department of Education. The restrictions of Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from conducting or participating in meetings or making contacts with respect to the performance of contract(s) except to the extent such activities would involve prohibited representation before the Department of Education. The restrictions of Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from carrying out a contractual project at particular location(s) except for Department of Education facilities and other location(s) where engaging in such activities would involve prohibited representation before the Department of Education. See, e.q., Metzgar, Opinion 06 -002; Ziegler, Opinion 98 -001. Based upon the facts that have been submitted, the latter portion of 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. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as an Educational Statistics Supervisor with the Commonwealth of Pennsylvania, Department of Education ( "Department of Education "), Barbara T. Kern ( "Ms. Kern ") would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon retiring from employment with the Department of Education, Ms. Kern became a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which Ms. Kern is deemed to have been associated upon retirement from Commonwealth employment (the "former governmental body ") is the Department of Education in its entirety, including but not limited to the Division of Data Services. The restrictions as to representation outlined above must be followed. Under the submitted facts, Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from accepting a contract with the Berks County Intermediate Unit: (1) to aid in the data collection of the new Pelican System developed by the Office of Child Development and Early Learning, Departments of Education and Public Welfare; or (2) for a similar project, subject to the conditions that in so doing, Ms. Kern would not enter into a contract with the Department of Education and would not otherwise engage in prohibited representation before the Department of Education. During the first year following her retirement from the Department of Education, Section 1103(g) of the Ethics Act would prohibit Ms. Kern from performing any activities as a contractor that would involve prohibited representation before the Department of Education. The restrictions of Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from conducting or participating in meetings or making contacts with respect to the performance of contract(s) except to the extent such activities would involve prohibited representation before the Department of Education. The restrictions of Section 1103(g) of the Ethics Act would not prohibit Ms. Kern from carrying out a contractual project at particular location(s) except for Department of Education facilities and other location(s) Rismiller /Kern, 08 -548 May 2, 2008 Page 10 where engaging in such activities would involve prohibited representation before the Department of Education. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11) of the Ethics Act, 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