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HomeMy WebLinkAbout09-512 BuenaventuraLisa C. Buenaventura, Ed. D. 201 Shirley Lane Boiling Springs, PA 17007 Dear Ms. Buenaventura: ADVICE OF COUNSEL February 24, 2009 09 -512 This responds to your letter dated January 13, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., would impose any prohibitions or restrictions upon a member of the Pennsylvania Early Learning Council with regard to contracting to perform services for the Office of Child Development and Early Learning ( "OCDEL ") on a project for the early childhood education community. Facts: You have requested an advisory from the Pennsylvania State Ethics C ommission based upon submitted facts that may be fairly summarized as follows. By letter dated November 12, 2008, Governor Edward G. Rendell appointed you to the Pennsylvania Early Learning Council ( "the ELC"). The ELC was established by Executive Order 2008 -07, issued September 11, 2008, by Governor Rendell. It is noted that Executive Order 2008 -07 provides, in pertinent part, as follows: 2. Powers and Duties. The Council will have the following powers and duties, consistent with Federal law: a. Conducting periodic needs assessments concerning the quality and availability of early childhood learning and development programs and services for children from birth to school entry; b. Identifying opportunities for, and barriers to, collaboration and coordination among Federally - funded and Commonwealth- funded child learning, development, and education services, and early childhood programs and services; Buenaventura, 09 -512 February 24, 2009 Page 2 c. Developing recommendations for increasing the overall participation of children in existing Federal, Commonwealth, and Local child care and early childhood learning, education, and development programs; d. Developing recommendations regarding the establishment of a unified data collection system for public early childhood learning, education, and development programs and services throughout the Commonwealth; e. Developing recommendations regarding Commonwealth -wide professional development and career advancement plans for early childhood educators; f. Assessing the capacity and effectiveness of 2 -year and 4 -year public and private institutions of higher education in the Commonwealth toward supporting the development of early childhood educators; Making recommendations for improvements in Commonwealth early learning standards; h. Developing and recommending updates to a multi- year plan for the expansion of effective early learning, education, and development services; Recommending policies and procedures that assure the integration of the Early Intervention system as part of the Commonwealth's approach to early childhood learning, education, and development; j. Assuring the development of a sound continuum from and between early childhood programs and traditional public education, starting with kindergarten; k. Ensuring the development of early childhood programs that identify and meet the needs of infants and toddlers and their families; Assuring an integrated approach to the design and delivery of early childhood mental health services across the Commonwealth; m. Providing ongoing input and advice to OCDEL about programs under its jurisdiction, including without limitation the development of Early Intervention, Full - Day Kindergarten, Keystone STARS, Nurse - Family Partnership, PA Pre -K Counts, and the Child Care Works Subsidized Child Care Program; n. Engaging parents to provide input and make recommendations to strengthen the work of OCDEL, and develop improved communication strategies with families across the Commonwealth regarding the g. Buenaventura, 09 -512 February 24, 2009 Page 3 importance of and their role in quality early learning, education, and child development, and the programs of the Commonwealth in support of quality early learning; o. Providing input to assure an adequate supply of, and quality for, the early childhood workforce needed to implement OCDEL's Programs; Advising OCDEL in the creation of a comprehensive professional development system that applies to practitioners in all early learning settings, with the goal of increasing the number of highly qualified early childhood professionals; Providing ongoing input to the development of the Early Learning Network, focusing on discussion of technical as well as communication and outreach needs, to support the sound development of the Network across OCDEL programs; P. q• r. Ensuring that children with special needs are properly supported by the state's early learning programs; s. Considering the overall early learning needs of young children, and evaluating how those needs are or are not met by OCDEL's services; and t. Advocating for services that fulfill the early learning needs of young children, particularly services provided through OCDEL. 4. Chair, Co -Chair and Terms. a. The Deputy Secretary for the OCDEL shall serve as Co -Chair of the Council.... 6. Relationship with other agencies. OCDEL will provide staff and /or data support to the Council. All Commonwealth agencies under the Governor's jurisdiction will cooperate with, provide assistance to, and review the recommendations of the Council with respect to its purpose, powers and duties, as set forth in this Executive Order. Executive Order 2008 -07, at 2 -5. Members of the ELC are appointed by the Governor. See, Executive Order 2008 -07, Section 3. You state that your role as an ELC Member is advisory, and that you provide input, feedback, advice, and recommendations for broad issues related to early childhood education. In December 2008, a contract proposal was issued by OCDEL for a contractor to create the "ELL (English Language Learner) Project Tool Kit" (hereinafter referred to as the ELL Project ") for the early childhood education community and prepare and provide training sessions for said community. You submitted your professional summary and Buenaventura, 09 -512 February 24, 2009 Page 4 curriculum vita for consideration for the ELL Project contract, at which time you indicated that you are a Member of the ELC. On January 12, 2009, you were informed by Catherine Cormany, Chief of Operations of OCDEL, that the selection committee had chosen you for the ELL Project contract. You state that in your capacity as a contractor for the ELL Project, you would develop and implement training and provide information about the latest research and best practices related to early childhood education and second - language learners. You have submitted a copy of the unsigned ELL Project contract, entitled "Independent Contractor Agreement for Pennsylvania Key," which document is incorporated herein by reference. It is noted that the ELL Project contract would include, inter alia, the following: Pennsylvania Key Work Statement — Lisa Buenaventura 2. Under terms of this agreement, Lisa Buenaventura shall function as a contractor for the Pennsylvania Key reporting to Division Chief, Operations, OCDEL Catherine Cormany and Gail Nourse, Director, Pennsylvania Key. Presentations and Meetings: 1. At least two face to face meetings with OCDEL advisors to review and vet materials and approach. 2. At least two face to face training sessions using the powerpoint and research brief. 5. Assignments paid for under this agreement shall be approved in writing in advance by the OCDEL /Pa Key. 6. The Contractor and OCDEL /Pa Key will establish a mutually agreeable time for periodic reporting. The contractor may from time to time be asked by OCDEL /PA Key to perform other related duties within the scope of the program and available hours. Independent Contractor Agreement for Pennsylvania Key, Attachment 1, at 2. Based upon the above submitted facts, you ask whether you would have a conflict of interest under the Ethics Act with regard to participating as a contractor for the ELL Project. 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 Buenaventura, 09 -512 February 24, 2009 Page 5 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 responding to your inquiry, the threshold question to be addressed is whether, in your capacity as a Member of the ELC, you would be considered a public official subject to the Ethics Act. The Ethics Act defines the term "public official" as follows: § 1102. Definitions "Public official." Any person elected by the public or elected or appointed by a governmental body or an appointed official in the executive, legislative or judicial branch of this Commonwealth or any political subdivision thereof, provided that it shall not include members of advisory boards that have no authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or any political subdivision thereof. 65 Pa.C.S. § 1102. The related term "governmental body" is defined as follows: "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. 65 Pa.C.S. § 1102. The regulations of the State Ethics Commission similarly define the term "public official" and set forth the following additional criteria: (i) The following criteria will be used to determine if the exception in this paragraph is applicable: (A) The body will be deemed to have the power to expend public funds if the body may commit funds or may otherwise make payment of moneys, enter into contracts, invest funds held in reserves, make loans or grants, borrow money, issue bonds, employ staff, purchase, lease, acquire or sell real or personal property without the consent or approval of the governing body and the effect of the power to Buenaventura, 09 -512 February 24, 2009 Page 6 expend public funds has a greater than de minimis economic impact on the interest of a person. (B) The body will be deemed to have the authority to otherwise exercise the power of the Commonwealth or a political subdivision if one of the following exists: (I) The body makes binding decisions or orders adjudicating substantive issues which are appealable to a body or person other than the governing authority. (II) The body exercises a basic power of government and performs essential governmental functions. (III) The governing authority is bound by statute or ordinance to accept and enforce the rulings of the body. (IV) The body may compel the governing authority to act in accordance with the body's decisions or restrain the governing authority from acting contrary to the body's decisions. (V) The body makes independent decisions which are effective without approval of the governing authority. (VI) The body may adopt, amend and repeal resolutions, rules, regulations or ordinances. (VII) The body has the power of eminent domain or condemnation. (VIII)The enabling legislation of the body indicates that the body is established for exercising public powers of the Commonwealth or a political subdivision. (ii) The term does not include judges and inspectors of elections, notary publics and political party officers. (iii) The term generally includes persons in the following offices: (A) Incumbents of offices filled by nomination of the Governor and confirmation of the Senate. (B) Heads of executive, legislative and independent agencies, boards and commissions. (C) Members of agencies, boards and commissions appointed by the General Assembly or its officers. (D) Persons appointed to positions designated as officers by the Commonwealth or its political subdivisions. (E) Members of municipal, industrial development, housing, parking and similar authorities. (F) Members of zoning hearing boards and similar quasi - judicial bodies. Buenaventura, 09 -512 February 24, 2009 Page 7 (G) Members of the public bodies meeting the criteria in paragraph (i)(A). 51 Pa. Code § 11.1. Status as a "public official" subject to the Ethics Act is determined by applying the above definition and criteria to the position held. The focus is upon the power and authority of the position rather than claims as to the specific duties actually performed. The Commonwealth Court of Pennsylvania has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984). In applying the Ethics Act's definition of "public official," the first portion of the definition provides that a public official is a person who: (1) is elected by the public; (2) is elected or appointed by a governmental body; or (3) is an appointed official in the executive, legislative, or judicial branch of the Commonwealth or a political subdivision of the Commonwealth. Muscalus, Opinion 02 -007. The fact that you were appointed to the ELC by the Governor satisfies the first portion of the definition. See, Cohen, Opinion 03 -006. As for the remainder of the definition, the necessary conclusion is that you would not fall within the statutory exception for members of purely advisory boards lacking authority to expend public funds other than reimbursement for personal expense or to otherwise exercise the power of the State or a political subdivision. In considering the powers and duties of the ELC, it is clear that although the ELC performs some advisory functions, for purposes of applying the Ethics Act, the ELC goes beyond advisory functions. Pursuant to Executive Order 2008 -07, Section 2 set forth above, the ELC has the authority to: (1) conduct periodic needs assessments concerning the quality and availability of early childhood learning and development programs and services for children from birth to school entry; (2) assess the capacity and effectiveness of 2 -year and 4 -year public and private institutions of higher education in the Commonwealth toward supporting the development of early childhood educators; (3) assure the development of a sound continuum from and between early childhood programs and traditional public education; (4) ensure the development of early childhood programs that identify and meet the needs of infants and toddlers and their families; (5) assure an integrated approach to the design and delivery of early childhood mental health services across the Commonwealth; (6) ensure that children with special needs are properly supported by the state's early learning programs; and (7) evaluate how the overall early learning needs of young children are or are not met by OCDEL's services. Given the foregoing powers, it is clear that the ELC is not a purely advisory board. Therefore, based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission's Regulations, and the opinions of the State Ethics Commission, the necessary conclusion is that you are a "public official" subject to the Ethics Act. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j) Voting conflict. - -Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following Buenaventura, 09 -512 February 24, 2009 Page 8 procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three - member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa. C. S. §§ 1103(a), (j). The following terms are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self - employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. Buenaventura, 09 -512 February 24, 2009 Page 9 "Financial interest." Any financial interest in a legal entity engaged in business for profit which comprises more than 5% of the equity of the business or more than 5% of the assets of the economic interest in indebtedness. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official /public employee is prohibited from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. In each instance of a conflict of interest, the public official /public employee would be required to abstain fully from participation. The abstention requirement would not be limited merely to voting, but would extend to any use of authority of office, including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting conflict, Section 1103(j) of the Ethics Act requires the public official /public employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the minutes. In applying the above provisions of the Ethics Act to the instant matter, it is noted that Section 1103(a) of the Ethics Act pertaining to conflicts of interest does not prohibit public officials /public employees from having outside business activities or employment; however, the public official /public employee may not use the authority of his public position - -or confidential information obtained by being in that position- -for the advancement of his own private pecuniary benefit or that of a business with which he is associated. Pancoe, Opinion 89 -011. Examples of conduct that would be prohibited under Section 1103(a) would include: (1) the pursuit of a private business opportunity in the course of public action, Metrick, Order 1037; (2) the use of governmental facilities, such as governmental telephones, postage, staff, equipment, research materials, or other property, or the use of governmental personnel, to conduct private business activities, Freind, Order 800; Pancoe, supra; and (3) the participation in an official capacity as to matters involving the business with which the public official /public employee is associated in his private capacity or private client(s). Miller, Opinion 89- 024; Kannebecker, Opinion 92 -010. If a private employer or business with which the public official /public employee is associated or a client of the private employer or business would have a matter pending before the governmental body, the public official /public employee would have a conflict of interest as to such matter. Miller, supra; Kannebecker, supra. A reasonable and legitimate expectation that a business relationship will form may also support a finding of a conflict of interest. Amato, Opinion 89 -002. In each instance of a conflict of interest, the public official /public employee would be required to abstain from participation and in the instance of a voting conflict, to abstain and fully satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. In applying the above provisions of the Ethics Act to the instant matter, you are advised that any business as to which you are a director, officer, owner, or employee or in which you have a financial interest would be considered a business with which you are associated. A self - employed individual is included within the definition of the term "business" as set forth in the Ethics Act. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Member of Buenaventura, 09 -512 February 24, 2009 Page 10 the ELC, you would have a conflict of interest in matters that would financially impact you, a business with which you are associated, or your /your business's customer(s) /client(s). See, Kannebecker, supra; Miller, supra. In response to your specific inquiry, you are advised as follows. Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from participating as a contractor for the ELL Project. However, in your public capacity as a Member of the ELC, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act as to any matter before the ELC that would relate to or impact any contract that you would have or would reasonably expect to receive, including but not limited to a contract for the ELL Project. Additionally, to the extent that you would have a business relationship with the OCDEL, you generally would have a conflict of interest in your capacity as a Member of the ELC in matters pertaining to the OCDEL. In each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct or the State Adverse Interest Act, and it is recommended that you obtain legal advice in that regard. Conclusion: As a Member of the Pennsylvania Early Learning Council ( "the ELC "), you are a public official subject to the provisions of the Public Official and Employee Ethics Act "Ethics Act"), 65 Pa.C.S. § 1101 et seq. Based upon the submitted facts that: (1 ) in December 2008, a contract proposa was issued by the Office of Child Development and Early Learning ( "OCDEL ") for a contractor to create the "ELL (English Language Learner) Project Tool Kit" (hereinafter referred to as the ELL Project ") for the early childhood education community and prepare and provide training sessions for said community; (2) you submitted your professional summary and curriculum vita for consideration for the ELL Project contract, at which time you indicated that you are a Member of the ELC; and (3) on January 12, 2009, you were informed by the Chief of Operations of OCDEL that the selection committee had chosen you for the ELL Project contract, you are advised as follows. Subject to the statutory exceptions to the definition of "conflict" or "conflict of interest" as set forth in the Ethics Act, 65 Pa.C.S. § 1102, pursuant to Section 1103(a) of the Ethics Act, in your capacity as a Member of the ELC, you would have a conflict of interest in matters that would financially impact you, a business with which you are associated, or your /your business's customer(s)/client(s). Section 1103(a) of the Ethics Act would not prohibit you, in your private capacity, from participating as a contractor for the ELL Project. However, in your public capacity as a Member of the ELC, you generally would have a conflict of interest under Section 1103(a) of the Ethics Act as to any matter before the ELC that would relate to or impact any contract that you would have or would reasonably expect to receive, including but not limited to a contract for the ELL Project. Additionally, to the extent that you would have a business relationship with the OCDEL, you generally would have a conflict of interest in your capacity as a Member of the ELC in matters pertaining to the OCDEL. In each instance of a conflict of interest, you would be required to abstain fully from participation and in the instance of a voting conflict, to abstain fully and satisfy the disclosure requirements of Section 1103(j) of the Ethics Act. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Buenaventura, 09 -512 February 24, 2009 Page 11 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