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HomeMy WebLinkAbout83-618 GoldenJohn A. Golden, Jr. Hill House Association 1835 Centre Avenue Pittsburgh, PA 15219 Mailin Address STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 November 23, 1983 ADVICE OF COUNSEL 83 -618 RE: Department of Community Affairs, Human Resource Development Specialist III, Representation; Section 3(e) Dear Mr. Golden: This responds to your letter of November 10, 1983, in which you requested Advice from the State Ethics Commission. Issue: You ask whether as a Human Resource Development Specialist III, you are considered a "public employee" and if so, what restrictions would be placed upon you upon your termination of service with the Department of Community Affairs. Facts: You indicate that for the last 11 years you have been working with the Department of Community Affairs (DCA) within the Pittsburgh Regional Office. During this time you have been classified most recently as a Human Resource Development Specialist III and your primary job as such has been the coordination of state - funded employment and community conservation programs within the Pittsburgh Regional Office. In this capacity, you provided • technical assistance related to such programs and your job description, which you provided and which is incorporated herein by reference, indicates that your responsibilities included the following: Consulting on project developments; providing technical assistance with respect to letters of intent and proposal development; coordinating regional review and prioritizing of Employment and Community Conservation letters of intent; reviewing such applications and recommending funding action to the Regional Program Evaluation and Review Committee and monitoring all regional employment and community conservation contracts. State Ethics Commission • 308 Finance Buildinc+ • Harrisburg, Pennsylvania John A. Golden, Jr. November 23, 1983 Page 2 In this capacity, you had no responsibility vis -a -vis the community services block grant programs which were administered direclty from Harrisburg. However, with respect to you primary responsibility in coordinating the Employment and Community Conservation (ECC) programs, according to the information provided by the Department of Community Affairs, you do participate on the Regional Proyam Evaluation end Review Committee (PERC) on those projects where you are the Program Specialist. A majority vote of the PERC is conclusive for approval, disapproval, or tabling of a particular application or project. In this process, although you do participate during this review and selection process of PERC as outlined above, you do not have the final decision- making authority as to who would be awarded the grant, the size of the grant, whether to terminate grant and contracts. These decisions are made by persons several layers removed from and above your particular position. In addition, you indicate that you undertake in certain field visits to determine compliance with and monitoring of grznts. These visits are done within the context of a standardized review process using standardized forms and procedures which are aimed at minimizing subjectivity and arbritrariness. However, while in the field, you do exercise a certain degree of professional judgment and discretion in recording observations from such visits. During these visits, you give appropriate technical assistance and advice, which the grantee can take or disregard, and you indicate that you have no authority to affect the financial organization life of a grantee. You indicate that observations and recommendations which are submitted in report form following these visits fo the Bureau of Human Resources within the Department of Community Affairs in Harrisburg, which then has the authority to take or recommend official action with respect to a particular grantee or program. In this respect, you indicate that you are not in the direct chain of command with the Harrisburg office. All official communications between the Regional office and any other entity within the Regional office is done via the Regional Director. Based on the job description and the service you rendered to DCA the personnel Deparment within DCA has determined that you are not a "public employee" nor have they required you to file a Financial Interest Statement under the State Ethics Act. You indicate that you plan to leave the employment of DCA on November 16, 1983, to become the Deputy Director of the newly - formed Hill House Incorporated. Hill House Incorporated was formed to adminster the community services block grant funds within the City of Pittsburgh. Mr. James Henry, is currently Executive Director of Hill House Association (the parent and founder of Hill House Incorporated) and also is serving as interim Director of Hill House Incorporated. It is anticipated that early in 1984 you will become the Executive Director of Hill House Incorporated. It should also be noted that John A. Golden, Jr. November 23, 1983 Page 3 Hill House Incorporated has a sub - contrat with the Pennsylvania Intergovernmental Council (PIC). PIC also has a contract, during fiscal year 1983 with the Department of Community Affairs to administer the community services block grant funds for the City of Pittsburgh. It is anticipated that the same arrangement will exist for fiscal year 1984. Thus, essentially, the Department of Community Services contracts with PIC to administer the community block grant funds for the City of Pittsburgh and Hill House Incorporated, by whom you will be employed, will have a sub - contract with PIC. However, it should be noted that the grant package and the fiscal year 1984 contract between the Department of Community Affairs and PIC and the sub - contract with Hill -House Incorporated will be negotiated by James Henry as intern Director of Hill -House Incorporated. You have had no involvement with these negotiations while employed with DCA or as an employee of Hill House Incorporated. You anticipate that as an employee of Hill House Incorporated, you would not be "representing" Hill House Incorporated during the development of the fiscal year 1984 grant package or negotiations for the fiscal year 1984 contract as described above. You would of course, be involved in representing Hill House Incorporated as administrator of the community services block grant funds for a major part of the 1984 fiscal - calendar year. However, this activity would not be related to appearances before the Department of Community Affairs but before PIC. While the Secretary of DCA is a member of the PIC Board (one of five departments representing the executive branch of state government) there are currently 18 to 20 Board members. PIC does not relate at all to the Pittsburgh Regional Office of DCA but rather more directly to the Harrisburg Office of DCA. Specifically, while it would be conceivable that at times during fiscal year 1984 Hill House Incorporated would need to be represented before DCA, because the community services block grant program is administered directly from Harrisburg any representation on your part on behalf of Hill House Incorporated would be before the Harrisburg DCA offices and not at the regional level. Discussion: Section 3(e) of the Ethics Act states that: (e) No former official or public employee shall 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). It is clear . that this Section of the Ethics Act imposes certain restrictions upon the conduct of a "former public employee" upon his termination of service with a governmental body. Thus, before we address the question of the nature or extent of these restrictions, we must determine that you fall within the category of "former public employee" to whom these restrictions would be applicable. John A. Golden, Jr. November 23, 1983 Page 4 The answer to this question centers around the determination of whether or not you are a "public employee" as that term is defined in the Ethics Act. The Ethics Act defines the term "public employee" as follows: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: - • (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the Ethics Commission provide further that the definition of "public employee" shall include the following: Public employee - -- (1) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de minimis economic impact; and John A. Golden, Jr. November 23, 1983 Page 5 (8) who meets the criteria of either subciause (I) or (II) of this clause: (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements; and other governmental body department heads. John A. Golden, Jr. November 23, 1983 Page 6 (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineer's, managers, secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (8) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code 1.1. It is also noted that the definitions of the terms "administering or monitoring grants" and "non- ministerial action" have been reviewed in conjunction with response to this request for advice. These definitions will not be reprinted, however, at this point. See 51 Pa. Code 1.1. From the job description which you have enclosed and the information you have provided along with the information provided by the Department of Community Affairs, it is clear that you have responsibility with respect to taking or recommending official action of a non - ministerial nature with respect to administering or monitoring grants or subsidies. Specifically, your own job description indicates that you review applications and recommend funding action to the Regional PERC. Additionally, the information provided indicates that on those projects on which you have acted as assistant or specialist, you have a role in voting in the selection process of grantees. Notwithstanding the fact that the final decision is made at a level much higher than yours, you do provide the final technical advice with respect to such grants. These activities would seem to bring you within the purview of the definition of "public employee" as set forth in the Ethics Act and within the regulations of the Commission. See in particular, 51 Pa. Code definition of "public employee" (i)(b)(II)(a)(4). Thus, we must conclude that you were a "public employee" during your tenure with DCA and upon your termination of such service with DCA you would be come a "former public employee." John A. Golden, Jr. November 23, 1983 Page 7 As a "former public employee" your conduct must conform to the requirements of Section 3(e) of the Ethics Act. Particularly, with respect to the one year period following your termination of service from DCA, you may not represent any individual with or without compensation before the governmental body with which you were associated. We begin our futher review of your request by asking two additional questions: (1) what is the scope of the term and activity known as "representation" and (2) to which governmental bodies do the prohibitions against "representation" extend in your case. From the job description which you have enclosed and based upon the information which you have provided in your request for advice, we conclude that the governmental body with which you were associated is the Pittsburgh Regional Office of the Department r Community Affairs. This is because your area of authority and responsibility extended only to this office. Thus, the one year restrictions set forth in Section 3(e) of the Ethics Act apply only to your "representation" of persons, including Hill House Incorporated before the DCA Region 5 (the Pittsburgh Office). You would, therefore, not be precluded from working with state agencies other than this Pittsburgh Regional Office or the DCA Harrisburg Office or regions other than Region 5 for the one year following your termination of employment with DCA. The Ethics Commission has also determined that the prohibited activity known as "representation" under Section 3(e) of the Act extends to such activities as follows: (1) personal appearances before the governmental body with which you were associated, here DCA Region 5 Office including but not limited to negotiations on contracts with that Office; (2) attempts to influence that governmental body; (3) participation in any manner before that governmental body in any case over which you had supervision, direct involvement, or responsibility while employed by DCA; and, (4) lobbying, that is representing the interests of any person before the governmental body in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The mere act of preparing and signing a proposal or having your name appear as the person who will serve in regard to a proposal (such as technical advisor) constitutes an attempt to influence your formal governmental body should such a proposal be presented to or reviewed by DCA Region 5 Office. See Kilareski, 80 -054. This is because the inclusion of your name on such a proposal has the potential of influencing the decision of the governmental body with which you were associated and, therefore, is prohibited for the John A. Golden, Jr. November 23, 1983 Page 8 one -year period after you leave that particular body. In your situation, however, it does not appear that you would be required while serving as Executive Director or employee of Hill House Incorporated to appear before Region 5 Office of DCA. Therefore, the activity and employment which you would propose to undertake on behalf of Hill House Incorporated would not fall within the scope of prohibited activity set forth in Section 3(e) of the Ethics Act so long as you do not engage in the activities outlined in numbers 1 -4 above with respect to the DCA Region 5 Office. .While these restrictions apply to you for the one year period following your termination of service with the Commonwealth vis -a -vis the DCA Region 5 Office, you may, nevertheless, engage in the following activities with respect to the Region 5 Office of DCA or otherwise within the one year period following your termination of service: a. You may administer rather than negotiate or re- negotiate any contract that exist or is to be awarded to your future employer or sub- contract as the case may be as long as the contract or sub - contract is entered into without the inclusion of your name as noted herein; b. You may make general informational inquiries of DCA, including Region 5 Office thereof, as long as no attempt is made to influence that Office as prohibited above: c. You may utilize the knowledge and expertise gained during your tenure as a public employee as long as you do not use any confidential information gained during your service as a public employee; and d. You may appear and represent any person on behalf of any client or new employer before any governmental body except before DCA Regional 5 Office as outlined above. Conclusion: Based upon the information which you have provided and our analysis thereof, as a Human Resource Development Specialist III you should be considered to have been within the classification of "public employee" as that term is set forth in the Ethics Act. Upon your termination of service with the Commonwealth, you will become a "former public employee" subject to the restrictions imposed by the Ethics Act under Section 3(e) thereof. Your conduct as a "former public employee" must conform to this advice and you should take note of the prohibited and allowable activities as discussed above. Additionally, as a former public employee, you must file a Financial Interest Statement for each year that you held the position described above and for the year following your termination of service. Thus, a Statement of Financial Interest should be filed no later than May 1, 1984, which represents the filing required for the year following your termination of service. John A. Golden, Jr. November 23, 1983 Page 9 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: Carol Cocheras, Esquire Frederick Brooks, Jr. Sigcerely, S ndra S. Chr stianson General Counsel