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HomeMy WebLinkAbout09-529 ForbrichChristina B. Forbrich 51 Eastgate Drive Camp Hill, PA 17011 Dear Ms. Forbrich: ADVICE OF COUNSEL March 24, 2009 09 -529 This responds to your letter dated February 5, 2009, by which you requested an advisory from the Pennsylvania State Ethics Commission. Issue: Whether as an annuitant providing services to the Pennsylvania Department of Labor and Industry under the 95 -day annuitant program, working in the position of Vocational Rehabilitation Specialist, you 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, and upon ceasing providing such services, the restrictions of Section 1103(g) of the Ethics Act pertaining to former public officials /public employees. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post - employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. In June 2005, you retired from Commonwealth employment as a Vocational Rehabilitation Specialist Supervisor ( "VRS Supervisor ") with the Office of Vocational Rehabilitation ( "OVR ") within the Pennsylvania Department of Labor and Industry "Labor and Industry "). You have submitted a copy of your official position description for your former position as a VRS Supervisor, which document is incorporated herein by reference. Following your retirement from the Commonwealth, you returned to work with OVR as an annuitant under the 95 -day annuitant program (see, 71 Pa.C.S. § 5706(A.1)), working in the position of Vocational Rehabilitation Specialist. Your most recent period of 95 days of service under the annuitant program ended on December 23, 2008. You have submitted copies of emails approving "CAR -A Request" forms pertaining to our service under the annuitant program as a Vocational Rehabilitation Specialist. You state your view that the descriptions of your duties contained within such forms indicate that you were not in a supervisory position and were not responsible for taking or recommending official action of any kind. It is administratively noted that per the most recent of these emails- -which pertained to your most recent service as an annuitant - -your duties included assisting in the development of new Forbrich, 09 -529 March 24, 2009 Page 2 guidelines for the purchase of assistive technology services. December 21, 2007, Email from R. Winters to Cynthia Miller, at 2. A copy of the job classification specifications for the position of Vocational Rehabilitation Specialist (job code 44839) has been obtained and is incorporated herein by reference. Per the job classification specifications under job code 44839, a Vocational Rehabilitation Specialist has responsibility for statewide planning, developing, and implementing phases of special vocational rehabilitation programs designed to improve services to disabled persons through innovative methods, educational programs, and new or refined counseling techniques. The specific duties and authority of a Vocational Rehabilitation Specialist under job code 44839 include, inter alia: • Developing and promoting phases of special statewide vocational rehabilitation programs, such as services available to specialized disability groups, organizations, or facilities; • Developing working relationships and providing consultant services to rehabilitation groups, facilities, service providers, or agencies; • Participating in in- service training of professional staff assigned to specialized areas; • Formulating standards and criteria for rehabilitation facilities; • Conducting program reviews and special studies, and recommending extension or revision of services; • Assisting medical staff in the development of specialized clinics; • Familiarizing recruitment personnel in private and government agencies with the employment potential of rehabilitated persons; • Recommending academic and vocational programs based on contacts with employers and a determination of labor market needs; • Providing expertise and technical assistance to district office(s) in developing and implementing programs to meet the vocational rehabilitation needs of persons with disabilities; • Evaluating the effectiveness and efficiency of vocational rehabilitation service delivery and compliance with state and federal law and regulations; and • Managing a district office's administrative areas, such as, for example, personnel, budgets, fiscal operations, purchasing, leases and buildings, management information systems, and /or training /staff orientation. Job classification specifications, at 1 -2. Based upon the above submitted facts, you request guidance as to whether you are now subject to the restrictions of Section 1103(g) of the Ethics Act, having ceased providing services to Labor and Industry under the 95 -day annuitant program as of December 23, 2008. 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 Forbrich, 09 -529 March 24, 2009 Page 3 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 clear that when an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the individual becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. In responding to your inquiry, the threshold question to be addressed is whether, in your former position as an annuitant providing services to Labor and Industry in the position of Vocational Rehabilitation Specialist, you would be considered a "public employee" subject to the Ethics Act. 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. Forbrich, 09 -529 March 24, 2009 Page 4 (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. (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 superintendents, school business managers and principals. Forbrich, 09 -529 March 24, 2009 Page 5 (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. 51 Pa. Code § 11.1. 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 Forbrich, 09 -529 March 24, 2009 Page 6 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 your former capacity as an annuitant providing services to Labor and Industry in the position of Vocational Rehabilitation Specialist, you would be considered a "public employee" subject to the Ethics Act. See, Graves, supra; McGlathery, supra. As a Vocational Rehabilitation Specialist with Labor and Industry, you 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 job classification specifications would be sufficient to establish status as a "public employee" subject to the Ethics Act: • Formulating standards and criteria for rehabilitation facilities; • Conducting program reviews and special studies, and recommending extension or revision of services; and • Managing a district office's administrative areas, such as, for example, personnel, budgets, fiscal operations, purchasing, leases and buildings, management information systems, and /or training /staff orientation. Additionally, your authority to assist in the development of new guidelines for the purchase of assistive technology services (see, December 21, 2007, Email from R. Winters to Cynthia Miller, at 2) would provide further support for the conclusion that as a Vocational Rehabilitation Specialist, you were a "public employee" subject to the provisions of the Ethics Act. The foregoing activities would also meet the criteria for determining your 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, on December 23, 2008, when you ceased providing services to Labor and Industry as an annuitant in the position of Vocational Rehabilitation Specialist, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Although you have not posed a specific inquiry with respect to the post - employment restrictions of Section 1103(g), in order to provide a complete response to your inquiry, this advisory shall set forth the restrictions of Section 1103(g) of the Ethics Act. While Section 1103(g) of the Ethics Act 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). Forbrich, 09 -529 March 24, 2009 Page 7 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 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 /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 public service, 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 Forbrich, 09 -529 March 24, 2009 Page 8 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. Under the facts that you have submitted, on December 23, 2008, when you ceased providing services to Labor and Industry under the 95 -day program for annuitants, you became a "former public employee' subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is Labor and Industry in its entirety, including but not limited to OVR. Therefore, until the expiration of a full one -year period following your December 23, 2008, termination of service as an annuitant with Labor and Industry, or until you would resume providing services to Labor and Industry under the 95 -day program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before Labor and Industry with promised or actual compensation as set forth above. 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 or give 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: In the former capacity as an annuitant providing services to the Pennsylvania Department of Labor and Industry "Labor and Industry ") in the position of Vocational Rehabilitation Specialist, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). On December 23, 2008, when you ceased providing services to Labor and Industry under the 95 -day program for annuitants, you became a "former public employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is Labor Forbrich, 09 -529 March 24, 2009 Page 9 and Industry in its entirety, including but not limited to the Office of Vocational Rehabilitation. Until the expiration of a full one -year period following your December 23, 2008, termination of service as an annuitant with Labor and Industry, or until you would resume providing services to Labor and Industry under the 95 -day program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before Labor and Industry with promised or actual compensation as set forth above. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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