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HomeMy WebLinkAbout89-565 LoganDear Mr. Logan: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 22, 1989 Mr. William R. Logan 89 -565 Deputy Commissioner Department of Education 333 Market Street Harrisburg, PA 17126 -0333 Re: Former Public employee; Executive Level Employee; Section 3(g); Department of Education; Deputy Commissioner for Basic Education. This responds to your letter of July 20, 1989, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Law presents any restrictions upon your employment following your termination of service with the Pennsylvania Department of Education. Facts: You retired as Deputy Commissioner for Basic Education in the Department of Education on August 2, 1989. You had State level management responsibilities for all aspects and areas of education from K through 12 in the Commonwealth with duties consisting of the development of educational policy, the interpretation and application of laws and regulations, State and Federal funding and program evaluation and monitoring. After your retirement you plan to join the staff of the Pennsylvania Association of Elementary and Secondary School Principals (PAESSP) as the Assistant Executive Director. PAESSP, as an association which represents public and private school principals, has a close working relationship with the Department of Education and has an interest in all agency policies, practices, procedures, and programs which relate to the day -to- day work of school principals. You conclude by requesting an opinion as to the restrictions the Ethics Law would empose apon your employment with PAESSP. Mr. William R. Logan Page 2 Discussion: As a Deputy Commission for Basic Education for the Pennsylvania Department of Education, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. 5402; 51 Pa. Code S1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. In addition you as Deputy Commissioner for Basic Education are also executive level employe as that term is defined under the Pennsylvania Ethics Law. Consequently, upon termination of employment, you would become a "former public employee" subject to Sections 3(g) and (i) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) 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 P.S. 5402. Initially, to answer your request the governmental body with which you were associated while working with the Department of Education must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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 Mr. William R. Logan Page 3 or elected and subdivisions and offices within that governmental body. 65 P.S. §402 Thus, the governmental body with which you have been associated upon the termination of employment would be the Pennsylvania Department of Education. Therefore, within the first year after termination of service with the Pennsylvania Department of Education, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Pennsylvania Department of Education. The Ethics Law does affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. In respect to the one year representation the Ethics Law defines "Represent" as follows: Section 2. 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. 65 P.S. S402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, Mr. William R. Logan Page 4 club or other organization or group of persons. 65 P.S. 5402. The Commission, in Popovicl}, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, (that is the Pennsylvania Department of Education), including, but not limited to, negotiations or renegotiations in general or as to contracts with the Pennsylvania Department of Education; 2. Attempts to influence the Pennsylvania Department of Education; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee. 4. Participating in any matters before the Pennsylvania Department of Education over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before the Pennsylvania Department of Education in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Pennsylvania Department of Education constitutes an attempt to influence the former governmental body.. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Pennsylvania Department of Education, is not prohibited as representation. You may, assist in the preparation of any documents presented to the Pennsylvania Department of Education so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Pennsylvania Department of Education. Once again, however, the activity in this respect should not be revealed to the Pennsylvania Department of Education. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Pennsylvania Department of Mr. William R. Logan Page 5 Edcuation to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. Finally, the Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. In addition, as noted above, you are an executive level state employe as that term is defined under the Ethics Law. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. In your capacity as an executive -level state employee, you are subject to the restrictions of Section 3(i) quoted above. Section 3(i) sets forth a specific prohibition that a former executive level state employee for a period of two years after termination of state employment may not be employed by, receive compensation from or act in a representative capacity for a business or corporation that the former executive level state employee participated in recruiting to initiate or expand operations in the Commonwealth. It should be further noted that the above restriction is limited to the situation where the recruitment is accomplished by a grant or loan for money or Mr. William R. Logan Page 6 promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to initiate or expand operations. The intendment of the above provision of the Ethics Law is to prohibit an executive level state employee from trading upon his ability to influence the disposition of public funds to private businesses or corporations by securing future employment from entities receiving such funds. Thus, if you were engaged in activities as outlined above, you would be subject to the two year employment restriction of Section 3(i) of the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value or no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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. Conclusion: As a Deputy Commissioner for Education, you are to be considered a "public employe" as defined in the Ethics Law. Upon termination of service with Department of Education, you would become a "former public employe" subject to the restrictions imposed by Section 3(g) of the Ethics Law. As such, you conduct should conform to the requirements of the Ethics Law as outlined above. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(9)(ii), this 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, providing the requestor 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. Mr. William R. Logan Page 7 Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. VJD /emg Sincerely, Vincent 1fi. Dopko, Chief Counsel