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HomeMy WebLinkAbout89-592 ShanahanMr. Raymond J. Shanahan 325 Mary Street Downingtown, PA 19335 Dear Mr. Shanahan: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 8, 1989 89 - 592 Re: Former Public Employee; Section 3(g); Mental Retardation Unit Manager; DPW This responds to your letter of October 27, 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 Department of Public Welfare. Facts: You contemplate retiring from the Commonwealth within the next six months from your current position with the Office of Mental Retardation in the Department of Public Welfare, hereinafter DPW. You are currently the unit manager at the Embreeville Center but expect to work with a non - profit community organization, Orion Communities, Inc., which provides job opportunities, life sharing opportunities, and affordable housing for individuals who carry a developmental disability label. Because some of your salary would come from grants provided by the Developmental Disabilities Planning Council, a question has been raised as to whether it would be appropriate to accept grant monies from the DD Planning Council after retiring from public service. You conclude by requesting an opinion as to your employment opportunity. Discussion: As a Mental Retardation Unit Manager for Office of Mental Retardation of DPW, 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 Mr. Raymond J. Shanahan Page 2 this Commission. 65 P.S. 5402; 51 Pa. Code 51.1. 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. Consequently, upon termination of employment, you would become a "former public employee" subject to Section 3(g) 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. S402. Initially, to answer your request the governmental body with which you were associated while working with DPW 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 or elected and subdivisions and offices within that governmental body. 65 P.S. 5402 Thus, the governmental body with which have been associated upon the termination of employment would be DPW. Therefore, within the first year after termination of service with DPW, Mr. Raymond. J. Shanahan Page 3 Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW. The Ethics Law does not 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. §402. 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, club or other organization or group of persons. 65 P.S. §402. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: Mr. Raymond J. Shanahan Page 4 I. Personal appearances before the former governmental body or bodies, (that is DPW), including, but not limited to, negotiations or renegotiations in general or as to contracts with the DPW; 2. Attempts to influence DPW; 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 DPW 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 DPW 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 DPW 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 DPW, is not prohibited as representation. You may, assist in the preparation of any documents presented to DPW so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to the DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW 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. Therefore, based upon the above analysis, it is clear that Section 3(g) would not prohibit your employment with Orion Communities, Inc. on the basis that part of your salary would Mr. Raymond J. Shanahan Page 5 come from grants provided by the Developmental Disabilities Planning Council; however, Section 3(g) of the Ethics Law would restrict your representation of Orion Communities, Inc. before your former governmental body, DPW. Of course, it is also assumed for purposes of this advice that under Section 3(a) of the Ethics Law you have not used the authority of public office or any confidential information to obtain any private pecuniary benefit for yourself or a business with which you are associated. 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 Unit Manager for the Office of Mental Retardation in DPW, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, you would become a "former public employee" subject to the restrictions imposed by Section 3(g) of the Ethics Law. As such, your 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. 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 Mr. Raymond J. Shanahan Page 6 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. Sincerely, 4o. Vincent J. Dopko, Chief Counsel