HomeMy WebLinkAbout88-513 JohnsonMs. Armenia Johnson
301 N. Fairmount Street
Pittsburgh, PA 15206
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PA 17120
TELEPHONE: (717) 783 -1610
February 17, 1988
ADVICE OF COUNSEL
88 - 513
Re: Former Public Employee; Section 3(e), Department of Public Welfare
Dear Ms. Johnson:
This responds to your letter of January 15, 1988, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
Department of Public Welfare.
Facts: In your letter you state that you are currently employed by the
Department of Public Welfare, hereinafter DPW, Bureau of Children, Youth and
Families, hereinafter Bureau, as a Regional Licensing Representative. You
state that you license private children and youth residential programs in
Western Pennsylvania and also provide consultation and technical assistance to
agencies in the development and implementation of their programs. You further
state that you recently have been offered a position with a private agency
which operates residential programs in Pennsylvania to supervise family
counseling service for both children who are released from residential care
and their families. You also note that this particular service of the private
agency does not require licensure. You then state that in your prospective
new position, you would not have any dealings with DPW concerning any
or proposals under the supervision of DPW for the first year after you
governmental service. You conclude by asking whether a conflict would arise
if you would accept this position.
In your job description /specification, which is incorporated herein by
reference, your duties and responsibilities as a Area Children, Youth and
Families Licensing Representative consist of inspecting private children and
youth agencies, both private and public group homes, child care institutions,
training schools, detention centers, emergency shelters, and such other
programs to determine compliance with DPW regulations; preparing licensing
inspection reports, reviewing and approving correction plans and making
recommendations for a full or provisional licensure; verifying compliance with
Ms. Armenia Johnson
February 17, 1988
Page 2
all regulations; providi ng technical assistance to agencies and other
governmental bodies and governmental officials, providing specialized training
upon request and interpreting applicable laws and regulations; conferring with
regional offices staff of mental health and retardation facilities regarding
dual licensure of programs, facilities and agencies, providing compliance
literature and information; reviewing, analyzing and evaluating agency program
descriptions, obtaining requisite architectual approvals and verifying agency
compliance with regulation; conducting complaint investigations and preparing
report and related correspondence; preparing case materials relative to
appeals of departmental licensing decisions; compiling reports of detention
placements; reviewing and recommending action regarding request for waivers of
regulations; reviewing and commenting on proposed departmental regulations and
lastly, performing such other duties as are required.
Discussion: As a Area Children Youth and Families Licensing Representative
for DPW, you are to be considered a "public employee" within the definition of
that term as set forth in the Ethics Act and the regulations of this
Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon
your job description, which when reviewed on an objective basis, indicates
clearly that you have the power to take or recommend official action of a
non- ministerial nature with respect to contracting, procurement, planning,
inspecting or other activities where the economic impact is greater than de
mi nimus on the interests of another person.
Consequently, upon termination of this employment, you would become a
"former public employee" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Section 3. Restricted activities.
(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.
Initially, to answer your request it is necessary to identify the
"governmental body" with which you were associated while working with DPW.
Then, the scope of the prohibitions associated with the concept and term of
"representation" must be reviewed. In this context, the Ethics Commission has
previously ruled that the "governmental body" with which an individual may be
deemed to have been associated during his tenure of public office or
employment extends to those entities where he had influence, responsibility,
supervision, or control. See Ewing Opinion, 79 -010. See also Kur vs.
Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 9 0 1981).
Ms. Armenia Johnson
February 17, 1988
Page 3
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been the Bureau. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be the Bureau. Therefore, within the first year
after you would leave DPW, Section 3(e) of the Ethics Act would apply and
restrict your "representation" of persons or new employers vis-a-vis the
Bureau.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Bureau. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from DPW. 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, that person must act consistently with the public trust and
upon departure from the public sector, that individual should not be allowed
to utilize his /her association with the public sector, officials or employees
to secure for himself /herself or a new employer, treatment or benefits that
may be obtainable only because of his /her association with his /her former
public employer. See Anderson Opinion, 83 -014; Zwikl Opinion, 85 -004.
In respect to the one year representation restriction the Ethics
Commission has promulgated regulations to define "representation" as follows:
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the Bureau), including, but not
limited to, negotiations or renegotiations on contracts with the Bureau;
2. Attempts to influence the Bureau;
3. Participating in any matters before the Bureau over which you had
supervision, direct involvement, or responsibility while employed by DPW;
Ms. Armenia Johnson
February 17, 1988
Page 4
4. Lobbying, that is representing the interests of any person or
employer before the Bureau in relation to legislation, regulations, etc. See
Russell Opinion, 80 -048 and Seltzer Opinion, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Bureau, constitutes an attempt to influence your former governmental body.
See Kilareski Opinion, 80 -054. Therefore, within the first year after you
leave DPW, you should not engage in the type of activity outlined above. The
Commission, however, has stated that the inclusion of your name as an employee
or consultant on a "pricing proposal," even if submitted to or reviewed by the
Bureau, is not prohibited as "representation." See Kotalik Opinion, 84 -007.
You may, assist in the preparation of any documents presented to the
Bureau so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Bureau. Once
again, however, your activity in this respect should not be revealed to the
Bureau. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Bureau to
secure information which is available to the general public. See Cutt
Opinion, 79 -023. This, of course, must not be done in an effort to indirectly
influence these entities or to otherwise make known to the Bureau your
representation of, or work for your new employer.
Finally, the Commission has concluded that if you are administering an
existing contract as opposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. See Dalton Opinion,
80 -056 and Beaser Advice, 81 -538.
Additionally, it is noted that Section 403(b) of the State Ethics Act
would prohibit any public employee or public official from accepting a
position of employment if said position has been offered based upon the
understanding that the official conduct of the employee or official, while
working for his former governmental body, was influenced by such offer. See
65 P.S. §403(b).
Lastly, the propriety of your proposed conduct has only been addressed
under the Ethics Act; the applicability of any other statute, code,
regulation, or ordinance or other code of conduct other than the Ethics Act
has not been considered.
Conclusion: As an Area Children, Youth and Families Licensing Representative,
you are to be considered a "public employee" as defined in the Ethics Act.
Upon termination of your service with DPW, you would become a "former public
Ms. Armenia Johnson
February 17, 1988
Page 5
"employee " subject to the restrictions imposed by Section 3(e) of the Ethics
Act. As such, your conduct should conform to the requirements of the Ethics
Act as outlined above. Your governmental body for the purpose of the one year
representation restriction is the Bureau.
Further, should you termi nate your employment or service, a s outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your 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 Commission will be scheduled and a formal
Opinion from the Commission w i l l 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.
Sincerely,
ncent . Dopko
General Counsel