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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