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HomeMy WebLinkAbout90-567 WallMr. Charles M. Wall Assistant Bureau Director Department of Education Bureau of Special Education 333 Market Street Harrisburg, PA 17126 Dear Mr. Wall: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 21, 1990 90 -567 Re: Conflict, Public Official /Employee, Assistant Bureau Director of Special Education, Department of Education, Executive Level Employee, Review of Association Program Which Offers Position of Employment. This responds to your letter of May 8, 1990, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon an assistant bureau director of the Bureau of Special Education in the Department of Education from accepting an offer of employment from an entity over which he as part of a team performed an evaluation as to the entity's program. Facts: For the past three years you have been employed by the Pennsylvania Department of Education as the Assistant Director of the Bureau of Special Education. As part of your duties and responsibilities you made recommendations to intermediate units and school districts regarding special education programs and budgetary matters. You participated. with a team of other employees of the Department of Education, school superintendents and immediate unit personnel to evaluate VisionQuest (VQ) as to its program. The evaluation took approximately two months which culminated in the issuance of a report, a copy of which has been submitted with your enclosure. VQ had approached the Department of Education to request an evaluation of their program which would ultimately be considered as a private residential rehabilitation institute. During the time of the evaluation, you developed an interest in VQ. After the evaluation was completed, the staff of VQ asked if you would be interested in becoming the Mr. Charles M. Wall Page 2 education director. The position was offered to you in March of 1990. You conclude by requesting an advisory opinion as to the propriety of your accepting this position from VQ. Discussion: As Assistant Bureau Director for the Bureau of Special Education in the Department of Education, you are a public employee as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. In addition, you are an executive -level state employee as that term is defined under the Ethics Law, infra and as such are subject to the requirements of Section 3(i), infra. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "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. "Conflict" or "conflict of interest" 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 or 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 Mr. Charles M. Wall Page 3 unique to a particular public office or position of public employment. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Under Section 3(a) of the Ethics Law quoted above, a public employee may not use the authority of office or confidential information to obtain a private pecuniary benefit for himself, Mr. Charles M. Wall Page 4 member of his immediate family, or business with which he or a member of his immediate family is associated. As noted above, Section 3(i) sets forth a specific prohibition that a former executive level state employee for a period of two years after termination of state employment may not be employed or receive any compensation or may act in a representative capacity for a business or corporation that the former executive level state employee participated in recruiting. It should be further noted that the above restriction specifically applies to the situation where the recruitment is accomplished by a grant or loan or money or a promise of a grant or loan or money from the Commonwealth to the business or corporation recruited or induced to expand. The intendment of the above provision of the Ethics Act is to prohibit an executive level state employee from obtaining employment or acting as a representative for various businesses or corporations that were recruited or induced to expand. Thus, Section 3(i) of the Ethics Act would restrict your employment for a two year period as to any business or corporation if the recruitment or inducement was accomplished by a grant, loan, money or promise of a grant, loan of money from the Commonwealth to the business or corporation which was recruited or induced to expand. Section 3(i) of the Ethics Act would not preclude your employment or representation of clients unless the above qualifying condition of Section 3(i) is applicable. In applying the proffered facts to Section 3(a) 'of the Ethics Law, Section 3(a) would prohibit you from using the status of your office or your activities to advance an opportunity of private employment with VQ. It is expressly assumed for purposes of this advice that you have not- taken any such action. In addition, you could not use the authority of office as a means of attempting to eliminate any potential competitors who would be competing with you for the position with VQ. Pepoer, Opinion 87 -008. Therefore, subject to the qualifications as noted Bove, Section 3(a) of the Ethics Law would not preclude yo from accepting the position with VQ. As to Section 3(i) of the Ethics Law, that provision of law is applicable to you as an executive -level state employee. Section 3(i) would not restrict you from the position of employment with VQ provided you did not actively participate in recruiting VQ or inducing VQ to open a new facility or branch in the Commonwealth or participate in inducing VQ to expand an existing plant or facility that was accomplished by a grant or loan of money from the Commonwealth to VQ that was recruited or induced to expand. Mr. Charles M. Wall Page 5 Lastly, although you have not so requested, you are advised that if you do terminate Commonwealth employment and accept the position with VQ, you would become a former public employee subject to the restrictions of Section 3(g) of the Ethics Law: Section 3. Restricted activities. (g) 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. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "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. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be the Pennsylvania Department of Education, hereinafter Education. The above is based upon the language of the Ethics Law, the legislative intent (Lecrislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90 -009, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with Education, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Education. Mr. Charles M. Wall Page 6 It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for. 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you have been associated is Education. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 Fhould 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 governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: Mr. Charles M. Wall Page 7 personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. / In addition, the term "Person" is defined as follows under the Ethics Law: The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: I. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name /as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by Education, is not prohibited as representation. You may, assist in the preparation of any documents presented to Education so long as you are not identified as the Mr. Charles M. Wall Page 8 preparer. You may also counsel any person regarding that person's appearance before Education. Once again, however, the activity in this respect should not be revealed to Education. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of Education to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. The Commission has concluded that the administering of an existing contract as opposed to negotiating or renegotiating a contract would not be prohibited by the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any/other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct or statutes relating to your position with the Education Department, other than the Ethics Law. Conclusion: As Assistant Bureau Director for the Bureau of Special Education for the Department of Education, you are a public employee and executive -level state employee subject to the provisions of the Ethics Law. Subject to the qualifications noted above, Section 3(a) of the Ethics Law would not restrict you from accepting a position with VQ which was offered to you after you completed an evaluation with other employees of the Department and other individuals regarding an evaluation of VQ program. If the conditions of 3(i) apply, that Section would restrict your activity as set forth above. Should you terminate your service, you must comply with the restrictions of Section 3(g) as a former public employee. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined ,above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), 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. such. This letter is a public record and will be made available as Mr. Charles M. Wall Page 9 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. • erely, Z) Vincent J. Dopko, Chief Counsel