HomeMy WebLinkAbout91-503 BogardusSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 18, 1991
Mr. R. D. Bogardus 91 -503
Department of Public Welfare
Bureau of Blindness and Visual Services
P.O. Box 2675
Harrisburg, PA 17105 -2675
Re: Former Public Employee, Section 3(g), DPW, Bureau of
Blindness and Visual Services, Director of Field Operations.
Dear Mr. Bogardus:
This responds to your letter of December 5, 1990, in which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of a director of field
operations of Public Welfare following termination of service
with the Department.
Facts: You are currently employed as the Director of Field
Operations in the Bureau of Blindness and Visual Services (BVS)
in the Department of Public Welfare (DPW). Upon retirement from
state employment on March 29, 1991, you have been offered on a
part -time basis and plan to accept a teaching /counseling position
at the Business Enterprises Training Center (BETC) by its
director Jack Feltenberger. In your position you would be a
subordinate to Mr. Feltenberger and as such not involved in
negotiations with the Commonwealth since Feltenberger has a
purchase service agreement with BVS and is primarily dependent at
this time upon BVS for training referrals. In light of the above
you seek an advisory as to whether you would have a conflict that
might jeopardize your retirement income if you were to accept the
position. After including a current job description which is
incorporated herein by reference, you indicate that you plan to
work in your new position two or three days per week at BETC. In
your new position you would have two major areas of
responsibility: teaching perspective blind vendors in areas
such as federal and state program regulation, program policies,
writing job descriptions and providing training to vending
facility assistance, interviewing techniques and related
problems regarding just cause terminations and supervisory
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skills; cooperating with BVS staff to counsel trainees to prevent
or overcome problems which . might interfere with the learning
process or ultimate successful participation in the business
enterprise prografm as operated by BVS. After expressing your
belief that your acceptance would only benefit BVS since you are
fully cognizant of past problems andBVS's need for quality blind
vendors, you conclude by requesting an opinion as to the
propriety of such activity following your retirement from state
service.
Discussion: As a Director of Field Operations for Bureau of
Blindness and Visual Service in the Department of Public Welfare,
you are to be considered a "public employee" within the
definition of that term as set forth in the Public Official and
Employee Ethics Law and the Regulations of this Commission. 65
P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is
based upon the job description, which when reviewed on an
objective basis, indicates clearly that the power exists to take
or recommend official action of a non- ministerial nature with
respect to contracting, procurement, planning, inspecting,
administering or monitoring grants, leasing, regulating, auditing
or other activities where the economic impact is greater than de
minimus on the interests of another person.
Consequently, upon termination of public service, you would
become a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics Law. Section 3(g) of the
Ethics Act provides that:
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.
Initially, to answer your request the governmental body with
which you are associated while working with DPW must be
identified. Then, the scope of the prohibitions associated with
the concept and term of "representation" must be reviewed.
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
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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 are
associated upon termination of public service would be DPW. The
above is based upon the language of the Ethics Law, the
legislative intent (Legislative 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 -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 DPW, Section 3(g) of the Ethics Law would apply and
restrict representation of persons or new employers vis -a -vis
DPW.
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
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which you are associated is DPW including but not limited to the
Bureau of Blindness and Visual Services.
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.
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(g) 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;
Page 5
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.
You may, assist in the preparation of any documents
presented to DPW so long as you are not identified as the
preparer. You may also counsel any person regarding that
person's appearance before DPW. Once again, however, the
activity in this respect should not be revealed to DPW. Of
course, any ban under the Ethics Law would not prohibit or
preclude the making of general informational inquiries of DPW 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.
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 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. Reference
is made to these provisions of the law not to imply that there
has or will be any transgression thereof but merely to provide a
complete response to the question presented.
Lastly, 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 Act has not been considered in that they do
not involve an interpretation of the Ethics Law.
Conclusion: As a Director of Field Operations for the Bureau of
Blindness and Visual Services in the Department of Public
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such.
Welfare, you are to be considered a "public employee" as defined
in the Ethics Law. Upon termination of service with DPW, you
would become a "former public employee" subject to Section 3(g)
of the Ethics Law. The former governmental body is DPW including
but not limited to the Bureau of Blindness and Visual Services.
The restrictions as to representation outlined above must be
followed. 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.
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 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 §2.12.
' cerely,
Vincent J. Dopko
Chief Counsel