HomeMy WebLinkAbout12-578 Vollbrecht
ADVICE OF COUNSEL
November 21, 2012
Edward A. Vollbrecht
707 Yankee Lane
Harrisburg, PA 17112
12-578
Dear Mr. Vollbrecht:
This responds to your letter dated October 1, 2012, and your email of November
14, 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 Director of
the Bureau of Teaching and Learning within the Pennsylvania Department of Education
following termination of Commonwealth employment.
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.
On September 21, 2012, you retired from your employment as the Director of the
Bureau of Teaching and Learning (“Bureau”) within the Pennsylvania Department of
Education (“Department of Education”). You have submitted a copy of a position
description for your former position as the Director of the Bureau, which document is
incorporated herein by reference. A copy of the job classification specifications for the
position of Director of the Bureau (job code 24380) has been obtained and is also
incorporated herein by reference.
You state that subsequent to your retirement, the Deputy Secretary of the Office
of Elementary and Secondary Education (“OESE”) within the Department of Education
inquired about your interest in serving as a consultant for various Commonwealth
projects and initiatives.
You have submitted a copy of a document which you describe as the statement
of work (the “Statement of Work”) for your proposed consultancy with OESE. Pursuant
to the Statement of Work, the assigned projects and scope of work for your proposed
consultancy with OESE would include the following:
(1) The PA LEADS project: in working with the Deputy Secretary of
OESE, you would serve as the coordinator for PA LEADS, facilitate
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November 21, 2012
Page 2
the implementation of the PA LEADS network, coordinate the
partner priorities, and perform certain other duties;
(2) The Standards Aligned System (“SAS”) project: under the direction
of the Deputy Secretary of OESE, you would assist in the
development and expansion of SAS and the Teacher Effectiveness
Initiative Professional Development, which would involve
participating in and performing certain functions;
(3) The Performance Learning Systems (“PLS”) portal project, which
would involve assisting, as requested, on PLS issues that would
impact the portal, participating in weekly conference calls with PLS
and monthly meetings with the Department of Education and PLS,
participating in the coordination of various existing SAS projects on
the portal, and providing input to matters related to curriculum and
instruction; and
(4) Engaging in other projects as directed by the Deputy Secretary of
OESE.
In your email of November 14, 2012, you state that the role you are pursuing
would be with PLS and that you would be working with school districts and school
district personnel. You state that you would be interacting with teachers and
administrators of local educational agencies, with a focus on strategies for the
improvement of teaching and learning for students in school districts. You further state
that you would not be directly initiating any interaction with the Department of
Education.
Based upon the above submitted facts, you seek guidance as to whether the
Ethics Act would impose any restrictions upon you with regard to contracting to perform
work as a consultant for OESE.
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 former capacity as the Director of the Bureau, 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;
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November 21, 2012
Page 3
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 your Commonwealth employment, you
became a “former public employee” subject to Section 1103(g) of the Ethics Act.
While Section 1103(g) does not prohibit a former public official/public employee
from accepting a position of employment, it does restrict the former public official/public
employee with regard to “representing” a “person” before “the governmental body with
which he has been associated”:
§ 1103. Restricted activities
(g) Former official or employee.--
No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
governmental body with which he has been associated for
one year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
The terms “represent,” “person,” and “governmental body with which a public
official or public employee is or has been associated” are specifically defined in the
Ethics Act as follows:
§ 1102. Definitions
"Represent."
To act on behalf of any other person in
any activity which includes, but is not limited to, the
following: personal appearances, negotiations, lobbying and
submitting bid or contract proposals which are signed by or
contain the name of a former public official or public
employee.
"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 official/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
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November 21, 2012
Page 4
former governmental body as to acting on behalf of a person; and (5) lobbying.
Popovich, Opinion 89-005.
Generally, a former “public official” or former “public employee” may not contract
with his former governmental body during the first year following termination of public
service, because such contracting would constitute prohibited representation before the
former governmental body in contravention of Section 1103(g) of the Ethics Act. See,
Shaub, Order 1242; Confidential Opinion, 97-008; Confidential Opinion, 93-005.
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 a 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 public
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 you are deemed to have been associated
upon termination of your Commonwealth employment is the Department of Education in
its entirety, including but not limited to the Bureau and OESE. Therefore, for the first
year following termination of your Commonwealth employment, Section 1103(g) of the
Ethics Act would apply and restrict “representation” of a “person” before the Department
of Education.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that during the first year following termination of your Commonwealth
employment, Section 1103(g) would prohibit you from contracting to perform consulting
or other services for the Department of Education, including but not limited to OESE.
Cf., Shaub, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. Such
contracting would necessarily involve prohibited representation before your former
governmental body (for example, through personal appearances before your former
governmental body or the submission of written documents containing your name to
your former governmental body).
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November 21, 2012
Page 5
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 official/public employee
and no public official/public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official/public employee would be influenced thereby. Reference is made to these
provisions of the law not to imply that there has been or will be any transgression
thereof but merely to provide a complete response to the question presented.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other
code of conduct other than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Act. Specifically not addressed herein is the
applicability of the Governor’s Code of Conduct.
Conclusion:
In the former capacity as the Director of the Bureau of Teaching
and Learning (“Bureau”) within the Pennsylvania Department of Education (“Department
of Education”), 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 Commonwealth employment, you became a “former public
employee” subject to Section 1103(g) of the Ethics Act. The former governmental body
is the Department of Education in its entirety, including but not limited to the Bureau and
the Office of Elementary and Secondary Education. For the first year following
termination of your Commonwealth employment, Section 1103(g) of the Ethics Act
would apply and restrict “representation” of a “person” before the Department of
Education. The restrictions as to representation outlined above must be followed.
During the first year following termination of your Commonwealth employment, Section
1103(g) of the Ethics Act would prohibit you from contracting to perform consulting or
other services for the Department of Education, including but not limited to the Office of
Elementary and Secondary Education within 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
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November 21, 2012
Page 6
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