HomeMy WebLinkAbout17-547 MannSTATE ETHICS COMMISSION
f
800 FINANCE BUILDING
RO. SOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1 -300 -932 -0936
ADVICE OF COUNSEL
August 2, 2017
To the Requester:
Mr, David Mann
Dear Mr. Mann:
17 -547
This responds to your letter dated .tune 5, 2017, by which you requested an
advisory from the Pennsylvania State Ethics Commission ( "Commission ").
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
P-5-7S. § 1101 et se g., would impose prohibitions or restrictions upon an individual
serving as a Member of the Pennsylvania Rehabilitation Council - -which reports to the
Secretary of Labor and Industry of the Commonwealth of Pennsylvania and provides
advice and counsel to the Office of Vocational Rehabilitation within the Pennsylvania
Department of Labor and Industry- -if a policy research organization with which the
individual is employed as a senior researcher would be engaged to perform work for the
Office of Vocational Rehabilitation.
Facts: You request an advisory from the Commission based upon submitted
acfs that may be fairly summarized as follows.
You are a Member of the Pennsylvania Rehabilitation Council. The
Pennsylvania Rehabilitation Council reports to the Secretary of Labor and Industry of
the Commonwealth of Pennsylvania and provides advice and counsel to the Office of
Vocational Rehabilitation within the Pennsylvania Department of Labor and Industry
( "Department of Labor and Industry ").
In a private capacity you are employed with Mathematica Policy Research, Inc.
( "the Corporation ") as a senior researcher with an expertise in disability and vocational
rehabilitation programs. The Corporation would like to discuss with the Office of
Vocational Rehabilitation possible ways in which the Corporation could bring its
expertise to bear on supporting the mission of the Office of Vocational Rehabilitation. A
situation may arise where the Pennsylvania Rehabilitation Council would vote on a
matter related to the engagement of the Corporation by the Office of Vocational
Rehabilitation or the evaluation of work that the Corporation may perform for the Office
of Vocational Rehabilitation.
FAX: (717) 787 -0806 0 Web Site: www.ethics.state.pa.us 0 e -mail: ethicsC state.pa.us
Mann, 17 -547
Est 2, 2017
Page 2
Based upon the above submitted facts, you ask whether, for purposes of
Sections 1103(1) and 1103 (8) of the Ethics Act pertaining to contracting and post -
termination of service restrictions, respectively), the governmental body with which you
are associated is the Pennsylvania Rehabilitation Council or the Department of Labor
and Industry in its entirety, including the Office of Vocational Rehabilitation. You further
ask for any additional guidance that may be pertinent to the instant matter.
Discussion: It is initially noted that pursuant to Sections 1'107(10) and 1107(11) of
e 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.
As a Member of the Pennsylvania Rehabilitation Council, you are a public official
subject to the provisions of the Ethics Act. See, Williams, Opinion 03 -002.
Sections 1103(a) and 11030) of the Ethics Act provide:
§ 1103. Restricted activities
(a) Conflict of interest. —No public official or public
employee shall engage in conduct that constitutes a conflict
of interest.
(j) Voting conflict.- -Where voting conflicts are not
otherwise addressed by the Constitution of Pennsylvania or
by any law, rule, regulation, order or ordinance, the following
procedure shall be employed. Any public official or public
employee who in the discharge of his official duties would be
required to vote on a matter that would result in a conflict of
interest shall abstain from voting and, prior to the vote being
taken, publicly announce and disclose the nature of his
interest as a public record in a written memorandum filed
with the person responsible for recording the minutes of the
meeting at which the vote is taken, provided that whenever a
governing body would be unable to take any action on a
matter before it because the number of members of the body
required to abstain from voting under the provisions of this
section makes the majority or other legally required vote of
approval unattainable, then such members shall be
permitted to vote if disclosures are made as otherwise
provided herein. In the case of a three - member governing
body of a political subdivision, where one member has
abstained from voting as a result of a conflict of interest and
the remaining two members of the governing body have cast
opposing votes, the member who has abstained shall be
permitted to vote to break the tie vote if disclosure is made
as otherwise provided herein.
65 Pa.C.S. §§ 1103(a), 0).
The following terms related to Section 1103(x) are defined in the Ethics Act as
follows:
§ 1102. Definitions
Mann, 17 -547
Est 2, 2017
Page 3
"Conflict" or "conflict of interest." Use by a public
official or public employee of the authority of his office or
employment or any confidential information received through
his holding public office or employment for the private
pecuniary benefit of himself, a member of his immediate
family or a business with which he or a member of his
immediate family is associated. The term does not include
an action having a de minimis economic impact or which
affects to the same degree a class consisting of the general
public or a subclass consisting of an industry, occupation or
other group which includes the public official or public
employee, a member of his immediate family or a business
with which he or a member of his immediate family is
associated.
"Authority of office or employment. " The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
"Business." Any corporation, partnership, sole
proprietorship, firm, enterprise, franchise, association,
organization, self- employed individual, holding company,
joint stock company, receivership, trust or any legal entity
organized for profit.
"Business with which he is associated." Any
business in which the person or a member of the person's
immediate family is a director, officer, owner, employee or
has a financial interest.
65 Pa.C.S. § 1102.
Subject to the statutory exclusions to the Ethics Act's definition of the term
"conflict" or "conflict of interest," 65 Pa.C.S. § 1102, a public official/public employee is
prohibited from using the authority of public office /employment or confidential
information received by holding such a public position for the private pecuniary benefit
of the public official/public employee himself, any member of his immediate family, or a
business with which he or a member of his immediate family is associated. .
In each instance of a conflict of interest, the public official/public employee would
be required to abstain from participation. The abstention requirement would not be
limited merely to voting, but would extend to any use of authority of office including, but
not limited to, discussing, conferrin' with others, and lobbying for a particular result.
Juliante, Order 809. Subject to certain statutory exceptions, in each instance of a voting
can ict, Section 1103') of the Ethics Act would require the public official/public
employee to abstain and to publicly disclose the abstention and reasons for same, both
orally and by filing a written memorandum to that effect with the person recording the
minutes.
Per the Pennsylvania Supreme Court's decision in Kistler v. State Ethics
Commission, 610 Pa. 516, 22 A.3d 223 (2011), in order to violate Section 1103(a) of the
Ethics Act, a public officiallpublic employee:
... must act in such a way as to put his [office /public position]
to the purpose of obtaining for himself a private pecuniary
benefit. Such directed action implies awareness on the part
Mann, 17 -547
August 2, 2017
Page 4
of the [public official /public employee] of the otential
pecuniary benefit as well as the motivation to obtain that
benefit for himself.
Kistler, supra, 610 Pa. at 523, 22 A. 3d at 227. To violate Section 1103(a) of the Ethics
Act, a public official /public employee "must be consciously aware of a private pecuniary
benefit for himself, his family, or his business, and then must take action in the form of
one or more specific steps to attain that benefit." Id., 610 Pa. at 528, 22 A.3d at 231.
Section 1103(f) of the Ethics Act, pertaining to contracting, provides as follows:
§ 1103. Restricted activities
(f) Contract. - -No public official or public employee or
his spouse or child or any business in which the person or
his spouse or child is associated shall enter into any contract
valued at $500 or more with the governmental body with
which the public official or public employee is associated or
any subcontract valued at $500 or more with any person
who has been awarded a contract with the governmental
body with which the public official or public employee is
associated, unless the contract has been awarded through
an open and public process, including prior public notice and
subsequent public disclosure of all proposals considered and
contracts awarded. In such a case, the public official or
public employee shall not have any supervisory or overall
responsibility for the implementation or administration of the
contract. Any contract or subcontract made in violation of
this subsection shall be voidable by a court of competent
jurisdiction if the suit is commenced within 90 days of the
making of the contract or subcontract.
65 Pa.C.S. § 1103(f).
Section 1103(8) of the Ethics Act imposes post- termination restrictions upon
former public officials [public employees:
§ 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).
The terms "governmental body" and "governmental body with which a public
official or public employee is or has been associated" are defined in the Ethics Act as
follows:
§ 1102. Definitions
"Governmental body," Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or
other establishment in the executive, legislative or judicial
Mann, 17 -547
August 2, 2017
Page 5
branch of a state, a nation or a political subdivision thereof or
any agency performing a governmental function.
"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.
In ap lying the above provisions of the Ethics Act to the instant matter, you are
advised as follows.
The Corporation is a business with which you are associated in your capacity as
an employee. You would have a conflict of interest as to discussion(s), vote(s), and /or
other action(s) of the Pennsylvania Rehabilitation Council pertaining to matter (s)
involving the Corporation — including but not limited to the engagement of the
Corporation by the Office of Vocational Rehabilitation or the evaluation of work that the
Corporation may perform for the Office of Vocational Rehabilitation—if: (1) you would be
consciously aware of a private pecuniary benefit for you or the Corporation; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3)
neither of the statutory exclusions to the definition of 'conflict" or "conflict of interest" as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. Cf., Kistler, supra.
As noted above, in each instance of a conflict of interest, you would be required
to abstain from participation, which would include voting unless one of the statutory
exceptions of Section 1103Q) of the Ethics Act would be applicable. Additionally, the
disclosure requirements of Section 11030) of the Ethics Act would have to be satisfied
in the event of a voting conflict.
As for Section 1103(f) of the Ethics Act, you are advised that the governmental
body with which you are associated is the Pennsylvania Rehabilitation Counsel and not
the Department of Labor and Industry in its entirety. Therefore, Section 1103(f) of the
Ethics Act would not apply as to a contract between the Corporation and the Office of
Vocational Rehabilitation.
You are further advised that upon termination of your service as a Member of the
Pennsylvania Rehabiiitation Council, you would become a "former public official" subject
to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with
which you would be deemed to have been associated upon termination of your service
as a Member of the Pennsylvania Rehabilitation Council would be the Pennsylvania
Rehabilitation Council in its entirety. Therefore, for the first year following termination of
your service as a Member of the Pennsylvania Rehabilitation Council, Section 1103(g)
of the Ethics Act would prohibit you from representing a "person," including but not
limited to the Corporation, before the Pennsylvania Rehabilitation Council.
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 o- he than tthe Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion: Based upon the submitted facts that: (1) you are a Member of the
ennsy van�a Rehabilitation Council; (2) the Pennsylvania Rehabilitation Council reports
to the Secretary of Labor and Industry of the Commonwealth of Pennsylvania and
provides advice and counsel to the Office of Vocational Rehabilitation within the
Mann, 17 -547
Est 2, 2017
Page 6
Pennsylvania Department of Labor and Industry ( "Department of Labor and Industry");
(3) in a private capacity, you are employed with Mathematica Policy Research, Inc. ( "the
CCorporation ") as a senior researcher with an expertise in disability and vocational
rehabilitation programs; (4) the Corporation would like to discuss with the Office of
Vocational Rehabilitation possible ways in which the Corporation could bring its
expertise to bear on supporting the mission of the Office of Vocational Rehabilitation;
and (5) a situation may arise where the Pennsylvania Rehabilitation Council would vote
on a matter related to the engagement of the Corporation by the Office of Vocational
Rehabilitation or the evaluation of work that the Corporation may perform for the Office
of Vocational Rehabilitation, you are advised as follows.
As a Member of the Pennsylvania Rehabilitation Council, you are a public official
subject to the provisions of the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. § 1101 et sew. The Corporation is a business with which you are associated in
your capacity as are employee. You would have a conflict of interest as to discussion(s),
vote(s), and/or other action(s) of the Pennsylvania Rehabilitation Council pertaining to
matter(s) involving the Corporation — including but not limited to the engagement of the
Corpora {ion by the Office of Vocational Rehabilitation or the evaluation of work that the
Corporation may perform for the Office of Vocational Rehabilitation- ---if: (1) you would be
consciously aware of a private pecuniary benefit for you or the Corporation; (2) your
action(s) would constitute one or more specific steps to attain that benefit; and (3)
neither of the statutory exclusions to the definition of `conflict" or "conflict of interest" as
set forth in the Ethics Act, 65 Pa.C.S. § 1102, would be applicable. In each instance of
a conflict of interest, you would be required to abstain from particippation, which would
include voting unless one of the statutory exceptions of Section 110% of the Ethics Act
would be applicable. Additionally, the disclosure requirements of Section 11030) of the
Ethics Act would have to be satisfied in the event of a voting conflict.
As for Section 1103(f) of the Ethics Act, the governmental body with which you
are associated is the Pennsylvania Rehabilitation Counsel and not the Department of
Labor and Industry in its entirety. Therefore, Section 1103(f) of the Ethics Act would not
apply as to a contract between the Corporation and the Office of Vocational
Rehabilitation.
Upon termination of your service as a Member of the Pennsylvania Rehabilitation
Council, you would become a "former public official" subject to the restrictions of Section
1103(g) of the Ethics Act. The governmental body with which you would be deemed to
have been associated upon termination of your service as a Member of the
Pennsylvania Rehabilitation Council would be the Pennsylvania Rehabilitation Council
in its entirety. Therefore, for the first year following termination of your service as a
Member of the Pennsylvania Rehabilitation Council, Section 1103(g) of the Ethics Act
would prohibit you from representing a "person," including but not limited to the
Corporation, before the Pennsylvania Rehabilitation Council.
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
Mann, 17 -547
August 2, 2017
Page 7
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 writingg and must be actually
received at the Commission within thin (30) days of the date of this
Advi a 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
Me such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Rabin M. Hittie
Chief Counsel