HomeMy WebLinkAbout82-537 LigatoMailin Address:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
May 6, 1982
ADVICE OF COUNSEL
Mr. John Ligato 82-537
309 E. New Castle St.
Zelienople, PA 16063
RE: 3(e); Regional Mental Retardation Program Representative II; DPW
Dear Mr. Ligato:
This responds to your letter of March 29, 1982 in which you requested
advice from the State Ethics Commission.
Issue: As a Regional Mental Retardation Program Representative II in the
Department of Public Welfare's (DPW) Wester Field Office, would you be subject
to any restrictions, under the Ethics Act, if you were to end your employment
with the Commonwealth and accept a job with a county provider of service?
Facts: You currently serve as a Regional Mental Retardation (MR) Welfare
Program Representative II for the Western District Office of Mental Retarda-
tion of DPW. In this capacity, you direct and guide the execution of assign-
ments of the Community Program Unit. You supervise three professional staff
members in reviewing, monitoring and evaluating the sixteen County MH /MR
Offices of the Western Region. You act as liaison with the State Centers and
MR Units. You report directly to the MR Regional Commissioners.
You provide technical assistance to the sixteen County MH /MR offices and
directly monitor the community programs. In your contact with the County
offices, you conduct budget and re- budget hearings with each County unit
through a line item review of each provider -of- service budget on a yearly
basis. You also personally visit the County programs for regular meetings
with County providers -of- service, and /or advocates.
The Department of Public Welfare itself allocates funds to the Counties
for the purpose of assuring that needed services will be provided to mentally
retarded citizens. The Western District Field Office, in which you work,
licenses the County programs /providers -of- service and thereafter monitors the
performance of the licensee, although you personally neither participate in
nor supervise the licensing unit of the Office.
The providers -of- service enter into contracts with and receive Common-
wealth monies from the County governments, not the DPW Field Office. While
the Field Office makes funding recommendations to the Central Office in
Harrisburg, all allocations, of funds originate in the Central Office.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. John Ligato
May 6, 1982
Page 2
Although the Western Field Office does approve potential sites for
performances of providers -of- services, its direct contact with the providers
is limited to that which exists between the Office's Licensing Unit and the
providers. As a Program Representative II, you are not part of the Licensing
Unit, nor do you supervise the staff of the Unit. You do not choose the
providers nor the amount of funds they receive.
You are presently considering leaving your position with the Commonwealth
and applying for a job with a provider -of- services. You question whether the
Ethics Act would affect such a plan.
Discussion: As a Regional MR Welfare Program Representative II, you are a
"public employee" subject to the Ethics Act, 65 P.S. §401 et seq. Your letter
and job description show that you are an individual, employed by the
Commonwealth, responsible for taking and recommending official action of a
non - ministerial nature with regard to administering or monitoring grants or
subsidies. See 65 P.S. §402. See also 51 Pa. Code §1.1. You would be consi-
dered a "former public employee" should you terminate your employment with
DPW.
Section 3(e) of the Ethics Act restricts the activities of a "former
public employee." A former public employee cannot "represent a person, with
or without 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.
§403(e). The governmental body with which you are associated is the Western
Field Office of the Department of Public Welfare.
Should you accept a job with a provider -of- services, you would be working
for and representing a private entity that has contractual relationship with a
County government. You indicate that the provider would have direct contact
with the Western Field Office via the latter's licensing Unit. Depending on
the scope of your hypothetical employment with the provider, you might be
called upon to represent your new employer before the Field Office. This
would be proscribed by the Ethics Act for the first year after you leave the
Field Office as further detailed below.
In general, the one year prohibition on "representation" applies only to
the Field Office in your case and prohibits, for that period:
1. personal appearance before the governmental body with which you were
associated, including but not limited to negotiations on contracts.
In your case, the relevant governmental body is the Western Field
Office; See Kilareski, 80 -054
2. Attempts to influence the governmental body; See Cutt, 79 -023;
3. participate in any manner before the Western Field Office in any case
over which you had supervision, direct involvement or responsibility
while employed by the Field Office;
Mr. John Ligato
May 6, 1982
Page 3
4. Signing and submitting with your name, bid proposals or licensing
documents /responses on behalf of the provider which would be reviewed
by the Field Office. Note: You may assist in preparation of same so
long as your name does not appear thereon.
5. Lobbying, that is, representing the interests of any person before
the governmental body to influence the body in relation to
legislation, regulations, etc. See Russell, 80 -048 and Seltzer,
80 -044.
Thus, your name could not appear on any memoranda, information, etc. that
the Field Office might receive in the course of the licensing decision.
However, you could administer - rather than negotiate - matters on behalf of
the provider, including the license provisions. See Dalton, 80 -056. The
County, as the other party to a contract betweeen it and the provider -
of- services, is a separate governmental body from the Field Office with which
you were associated. Thus, the Ethics Act does not affect your ability to
appear before the County, in a representative capacity, on behalf of the
provider -of- services.
Conclusion: As a public employee, you will be subject to the restrictions set
forth in Section 3(e) should you end your employment with the Commonwealth.
At that time, your conduct in the year following your departure from the Field
Office must comply with the Act and may be guided by the above discussion.
The governmental body with which you are associated is the Western Field
Office of the Department of Public Welfare. Thus, the Ethics Act does not now
and will not affect your ability to appear before a County government on
behalf of a private employer.
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 Commission may be scheduled and a formal
Opinion from the Commission will be issued. You should make such a request or
indicate your disapproval of this Advice within the next 30 days.
Sincerely,
BF /rdp
cc: Helen O'Bannon, Secretary
Department of Public Welfare
„444(
Sandra S. Chr''tianson
General Coun el