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HomeMy WebLinkAbout90-592 GaskillMr. Ronald Gaskill 90 -592 Department of Agriculture 2301 North Cameron Street Harrisburg, PA 17110 -9408 Re: Conflict, Public Employee, Former Public Employee, Executive Level Employee, Bureau Director, Department of Agriculture, Pennsylvania Dairy Promotion Program, Program Manager, Employment Offer. Dear Mr. Gaskill: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 18, 1990 This responds to your letter of August 10, 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 bureau director in the Department of Agriculture from accepting an offer to employment from an entity wherein he had involvement as to a commodity marketing program. Facts: As a Bureau Director in the Department of Agriculture, you seek an advisory opinion as to whether you can respond to a published advertisement for a management position for a commodity marketing program which was established pursuant to the Pennsylvania Agriculture Commodity Marketing Act of 1968 as amended. The Pennsylvania Department of Agriculture (Agriculture) administers the Pennsylvania Agriculture Commodity Marketing Act of 1968 as amended ( PACMA). PACMA enables producers of agriculture commodities the opportunity to adopt marketing and public relations programs that are funded by assessments paid by all affected producers of the commodity. The Secretary of Agriculture is responsible for appointing boards of directors for each commodity program, which directors are producers of the commodity with the exception of one statutory position reserved for the secretary or his designate. Any given board has exclusive authority to determine all matters for the program including the awarding of marketing contracts, the employment of personnel and other activities. The commodity programs are exempt from the contracting and appointment Mr. Ronald Gaskill Page 2 provisions of the Administrative Code of 1929 and commodity program employees are not state government employees. Agriculture is responsible for administering PACMA which includes the appointing of board members, the collection, holding and disbursement of assessment funds as directed by the program board of directors, the collection of delinquent assessments, the providing of office facilities, all of which actions are accomplished by staff located in the Department's Bureau of Market Development. As Bureau Director of Market Development (bureau) your responsibility with PACMA and the commodity programs is to advise the Secretary or designates to the boards of directors, assure the performance of administrative functions serve as the Secretary's designate on each commodity board, provide clarification, make numerous administrative and operational decisions. In addition, you as a board member have made recommendations on program matters and voted on policy matters. Currently, one of the commodity programs, namely the Pennsylvania Dairy Promotion Program (Program) has by public board action decided to hire a program manager. You voted in favor of the motion to hire the manager as well as participated in the discussions to define the attributes of an acceptable candidate. A position vacancy announcement was created and publicized via direct mail to state departments of Agriculture, state Farm Bureaus and dairy promotion organizations nationwide. The advertisement, a photocopy of which has been supplied was also placed in two trade publications and the Harrisburg Patriot News. You have avoided any involvement in the executive search process including the collection of resumes, discussions of possible candidates or any other activity. You have also suggested to the board's executive committee of which you are not a member that it could issue a request for proposal (RFP) in a contract for management services in addition to soliciting resumes for the position of program manager. You have further advised the members that you would not be able to assist in preparation of the RFP's since you at that time had not made a final determination as to whether you would be a candidate for the position. You will abstain from any board consideration of the program manager position until a final decision is made. You then reference Section 3(a) of Act 170 of 1978 which has since been amended by Act 9 of 1989. If you apply for the promotion manager position, you inquire as to whether you may participate in the interview process since you are still employed by Agriculture. If you are selected as program manager, you would resign your position with Agriculture. You inquire as to whether your response to the job advertisement would place you in jeopardy of using your public office to obtain financial gain and, if so, whether such would constitute a violation of the Act. You further reference Section 3(e) of the Act of 170 of 1978 which is currently 3(g) of Act 9 of 1989 regarding the one year representation restriction as to a former public employee. You Mr. Ronald Gaskill Page 3 conclude by requesting advice so that the Pennsylvania Dairy Promotion Program may resolve the matter as expeditiously as possible. Discussion: As Director for the Bureau of Market Development in the Department of Agriculture, 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. Ronald Gaskill Page 4 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. Ronald Gaskill Page 5 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 Pennsylvania Dairy Promotion Program. 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 Pennsylvania Dairy Promotion Program. Pepper, Opinion 87 -008. Therefore, subject to the qualifications as noted above, Section 3(a) of the Ethics Law would not preclude you from accepting the position with Pennsylvania Dairy Promotion Program, if offerred. 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 Pennsylvania Dairy Promotion Program provided you did not actively participate in recruiting the Pennsylvania Dairy Promotion Program or inducing with Pennsylvania Dairy Promotion Program to open a new facility or branch in the Commonwealth or participate in inducing with Pennsylvania Dairy Promotion Program to expand an existing plant or facility that was accomplished by Mr. Ronald Gaskill Page 6 a grant or loan of money from the Commonwealth to Pennsylvania Dairy Promotion Program that was recruited or induced to expand. Such would seem not to have application since these types of programs are authorized by statute and secondly are promotions and hence do not entail opening facilities or expanding existing plants. Lastly, although you have not so requested, you are advised that if you do terminate Commonwealth employment and accept the position with Pennsylvania Dairy Promotion Program, 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 Department of Agriculture including but not limited to the Bureau of Market Development, hereinafter referred to as Agriculture. 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 Mr. Ronald Gaskill Page 7 one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, 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 Agriculture. 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 Agriculture. 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 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 governmental body. Mr. Ronald Gaskill Page 8 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: 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. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(q) of the Ethics Law to prohibit: 1. 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 Mr. Ronald Gaskill Page 9 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 your governmental body is not prohibited as representation. You may, assist in the preparation of any documents presented to your governmental body so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before Agriculture. Once again, however, the activity in this respect should not be revealed to Agriculture. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your governmental body 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 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 Department of Agriculture other than the Ethics Law. Conclusion: As a Director of the Bureau of Market Development in the Department of Agriculture, 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 Pennsylvania Dairy Promotion Program which was offered to you after you completed an evaluation with other employees of the Department and other individuals regarding an evaluation of Pennsylvania Dairy Promotion 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 Mr. Ronald Gaskill Page 10 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 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. Sincerely, Vincent J. Dopko, Chief Counsel