HomeMy WebLinkAbout12-547 Manganelli
ADVICE OF COUNSEL
June 12, 2012
Dennis Manganelli
1314 Terrilin Drive
Somerset, PA 15501
12-547
Dear Mr. Manganelli:
This responds to your letter dated May 3, 2012, and your email of May 7, 2012,
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.C.S. § 1101 et seq., would impose any restrictions upon employment of a Licensed
Psychologist Manager, Corrections following termination of employment with the
Pennsylvania Department of Corrections (“Department of Corrections”).
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.
You are currently employed as a Licensed Psychologist Manager, Corrections
with the Department of Corrections at SCI Laurel Highlands. You have submitted a
copy of your official Department of Corrections position description, which document is
incorporated herein by reference. A copy of the job classification specifications for the
position of Licensed Psychologist Manager, Corrections (job code 43100) has been
obtained and is also incorporated herein by reference.
You state that you plan to retire from your employment with the Department of
Corrections within several weeks and take the position of Psychology Manager with a
private contractor named “Liberty Healthcare” (“Liberty”). Liberty will place you at
Ebensburg Center, a facility of the Pennsylvania Department of Public Welfare (“DPW”).
You state that Ebensburg Center provides services to developmentally disabled
individuals and that Ebensburg Center does not do business with the Department of
Corrections. In your role with Liberty, you will have functional supervision over
unlicensed psychologists, and you will participate in facility meetings and reviews to
ensure that psychology staff programs will be in compliance with DPW policies and
procedures regarding the appropriate care of developmentally disabled individuals.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any prohibitions or restrictions upon you with regard to your
proposed employment as a Psychology Manager with Liberty.
Manganelli, 12-547
June 12, 2012
Page 2
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.
As a Licensed Psychologist Manager, Corrections for the Department of
Corrections, 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 position description and the 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; administering or
monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating;
auditing; or other activity(ies) where the economic impact is greater than de minimis on
the interests of another person.
Consequently, upon termination of employment with the Department of
Corrections, 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 employee from accepting
a position of employment, it does restrict the former 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
Manganelli, 12-547
June 12, 2012
Page 3
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 “represent” 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 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 employee may assist in the preparation of any documents
presented to his former governmental body. However, the former public employee may
not be identified on documents submitted to the former governmental body. The former
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 employee with regard to
representation before his former governmental body. The former public employee is not
restricted as to representation before other agencies or entities. However, the
“governmental body with which a public employee is or has been associated” is not
limited to the particular subdivision of the agency or other governmental body where the
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 your employment with the Department of Corrections
would be the Department of Corrections in its entirety, including but not limited to SCI
Laurel Highlands. Therefore, for the first year following termination of your employment
with the Department of Corrections, Section 1103(g) of the Ethics Act would apply and
restrict “representation” of a “person” before the Department of Corrections.
Manganelli, 12-547
June 12, 2012
Page 4
You are advised that Section 1103(g) of the Ethics Act would not prohibit you
from accepting employment as a Psychology Manager for Liberty. However, during the
first year following termination of your employment with the Department of Corrections,
Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity(ies)
that would constitute prohibited representation before the Department of Corrections 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 or employment, or confidential information received by being in
the public position, 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 employee and no public
employee shall solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the 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
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor’s Code of Conduct.
Conclusion:
As a Licensed Psychologist Manager, Corrections for the
Pennsylvania Department of Corrections (“Department of Corrections”), 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, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with the
Department of Corrections, you would become a “former public employee” subject to
Section 1103(g) of the Ethics Act. The former governmental body would be the
Department of Corrections in its entirety, including but not limited to SCI Laurel
Highlands. For the first year following termination of your employment with the
Department of Corrections, Section 1103(g) of the Ethics Act would apply and restrict
“representation” of a “person” before the Department of Corrections. The restrictions as
to representation outlined above must be followed. 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,
Manganelli, 12-547
June 12, 2012
Page 5
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