HomeMy WebLinkAbout88-591 ColdironMr. J. Robert Coldiron
Assistant Executive Director
R.D. #1, Box 374
West Decatur, PA 16878
Dear Coldiron:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
June 28, 1988
88 - 591
Re: Former Public Employee; Section 3(e), Education; Educational
Testing and Evaluational Chief
This responds to your letter of May 24, 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 Pennsylvania Department of Education.
Facts: You state that you terminated your employment with the
Pennsylvania Department of Education, hereinafter Department, on
January 21, 1988 and have accepted employment as Assistant
Executive Director for the Central Intermediate Unit. You
advise that in your last position with the Department, you served
as Chief of the Educational Testing and Evaluation Division,
hereinafter Division, in the Department. You state that as
Division Chief, you directed the student testing programs,
Educational Quality Assessment and Testing for Essential Literacy
and Learning Skills. After advising that you contracted with
several vendors regarding providing the above services, you
advise that the Division has recently sent out a request for
proposals (RFP) for similar services and that two vendors have
contacted you to assist in the preparation of the RFP. After
stating that these vendors would offer you an honorarium for your
service, you state that you have not entered into a contractual
arrangement with either of these companies and will not do so
until you receive clarification. Secondly, you state you have
been asked to serve as an expert witness in a school district
Mr. J. Robert Coldiron
June 28, 1988
Page 2
strike situation and that your testimony, if given, would be
based on your work experience with the Department. You conclude
by requesting advice from the Ethics Commission as to whether
there would be a conflict of interest in either the above two
situations.
As to your position of Division Chief, your job description
which is incorporated herein by reference indicates that your
duties and responsibilities are as follows:
*Direct the administration of the Educational Quality
Assessment program;
*Direct the administration of the Testing for Essential
Learning and Literacy Skills Program (TELLS);
*Direct the development of the Honors testing program;
*Supervise the development of measurement instruments for the
Twelve Goals of Quality Education for five grade levels;
*Supervise the development of entrance and exit tests for
the TELLS program;
*Supervise the enrollment of districts in all testing
programs;
*Supervise the analyses and reporting of the TELLS results;
*Coordinate the statistical analysis of school assessment
data;
*Develop and supervise methodology for interpreting
assessment results to school districts;
*Supervise the remediation program required by TELLS;
*Supervise post- assessment activities in the use of
assessment results and in the location of appropriate
resources related to goal achievement;
*Coordinate division workshops;
*Coordinate liaison activities with other PDE units,
professional organizations and other groups interested in
EQA activities;
*Report results to school district staff and perform such
other duties as are required of your position.
Mr. J. Robert Coldiron
June 28, 1988
Page 3
Discussion: As a Chief for the Division of Educational Testing
and Evaluation 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 minimus 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 the "governmental body"
with which you were associated while working Department must be
identified. 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 Kurt v. Commonwealth of Pennsylvania, State Ethics
Commission, 435 A.2d 940 (1981).
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 Division. Thus, the "governmental body" with which
you have been "associated" upon the termination of your
employment would be the Division. Therefore, within the first
year after you would leave the Department, Section 3(e) of the
Ethics Act would apply and restrict your "representation" of
persons or new employers vis -a -vis the Division.
Mr. j. Robert Coldiron
June 28, 1988
Page 4
The Ethics Act would not affect your ability to appear
before agencies or entities other than with respect to the
Division. Likewise, there is no general limitation on the type
of employment in which you may engage, following your departure
from the Department. 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 he must
act: consistently with the public trust and upon departure from
the public sector, that individual should not be allowed to
utilize his association with the public sector, officials or
employees to secure for himself or a new employer, treatment or
benefits that may be obtainable only because of his association
with his former public employer. See Anderson, Opinion 83 -014;
Zw i?.1, Opinion 85 -004.
In respect to the one year representation 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 employee.
51 Pa. Code X1.1.
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
Division), including, but not limited to, negotiations or
renegotiations on contracts with the Division;
2. Attempts to influence the Division;
3. Participating in any matters before the Division over
which you had supervision, direct involvement, or responsibility
while employed by the Department;
Mr. J. Robert Coldiro
June 28, 1988
Page 5
4. Lobbying, that is representing the interests of any
person or employer before the Division 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 Division, constitutes an
attempt to influence your former governmental body. See
Kilareski, Opinion 80 -054. Therefore, within the first year
after you leave the Department, 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
Division, is not prohibited as "representation." See Kotalik,
Opinion 84 -007.
You may, assist in the preparation of any documents
presented to the Division so long as you are not identified as
the preparer. You may also counsel any person regarding that
person's appearance before the Division. Once again, however,
your activity in this respect should not be revealed to the
Division. Of course, any ban under the Ethics Act would not
prohibit or preclude you from making general informational
inquiries of the Division 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
Division 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.
Regarding your question as to whether you can enter into a
contractual relationship with the two vendors who wish to submit
on the RFP, you may assist in the preparation of these documents
provided that your identity is not reflected as detailed above.
Regarding the matter as to whether you may be a witness in a
school district strike situation, Section 3(e) of the Ethics Act
would not prohibit you from giving this testimony since you
would not be representing any one before your governmental body,
the Division.
lir. . "i . tobert Co 1_diron
June 28, 1988
Page 6
Section 3(b) of .: La L":hics3 Act provides :
(b) No person shall offer or give to a public
official or public employee or candidate for
public office or a member of his immediate
family or a business with which he is
associated, and no public official or public
employee or candidate for public office shall
solicit or accept, anything of value,
including a gift, loan, political
contribution, reward, or promise of future
employment based on any understanding that
the vote, official action, or judgment of the
public employee or candidate for public
office would be influenced thereby. 65 P.S.
403(b).
Under Section 3(b) of the Ethics Act cited above, which a
public official or employee must observe, a public official or
employee must neither offer nor accept anything of value on the
understanding or with the intention that his judgment would be
influenced thereby. It is assumed such a situation does not
exist here. This Section is referenced not to indicate that any
such activity has been or will be undertaken but in an effort to
provide a complete response to your inquiry.
Lastly, 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
other than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Conclusion: As a Division of Educational Testing and Evaluation
Chief, you are to be considered a "public employee" as defined in
the Ethics Act. Upon termination of your service with the
Department, you would become a "former public 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
Division. Lastly, the propriety of the proposed conduct has only
been addressed under the Ethics Act.
Further, should you terminate your employment or service, as
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.
Mr. J. Robert Coldiron
June 28, 1988
Page 7
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 i:I 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.
such.
This letter is a public record and will be made available as
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 tre
Commission will be scheduled and a former 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 S2.12.
Sincerely,
Vincent J. Dopko,
General Counsel