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HomeMy WebLinkAbout91-522 BrownDear Mr. Brown: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 13, 1991 91 -522 Mr. Balinger "Skip" Brown Box 164 Boiling Springs, PA 17007 Re: Former Public Employee, Section 3(g), Pennsylvania Commission on Crime and Delinquency, Department of Public Welfare, Dauphin County, New Public Employment. This responds to your letter of January 29, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon your employment following termination of service with the Pennsylvania Commission on Crime and Delinquency as of July 1990, and your prospective termination of service with the Department of Public Welfare where you are presently employed followed by employment with Dauphin County. Facts: Since July 1990, you have been employed with the Department of Public Welfare (DPW) in the Office of Administration as a Human Resources /Organizational Consultant classified as a Personnel Analyst III. Your present position is not affiliated with the adult criminal justice system or with state /federal grants. Prior to July 1990, you were employed by the Pennsylvania Commission on Crime and Delinquency (PCCD). During most of your tenure with PCCD, you were a Program Analyst III with the Bureau of Statistics and Policy Research. During the several months prior to your leaving PCCD, your position was in the Bureau of Program Development. Your function at the PCCD was manager of the Jail Overcrowding Program where you provided technical assistance to counties as they developed projects to help deal with crowding. Included in this was helping counties prepare applications to PCCD for federal funds to be used to implement projects. As of January 22, 1991, you were notified that your name was submitted as a candidate for furlough due to the state fiscal crisis. Since that notification, you have inquired with various private, county and state agencies regarding employment. Subsequently, you have been contacted by Dauphin County regarding a position at the county prison as associate deputy warden. This position was part of Mr. Bolinger "Skip" Brown Page 2 the project developed by Dauphin County while you assisted Dauphin County during your tenure with the PCCD, and it was included as part of the federal grant awarded to Dauphin County by the PCCD. PCCD approves all such grants, and you note that its membership includes members of the state Legislature, the Attorney General, the Commissioner of the Department of Corrections, gubernatorial appointees and other members. You specifically inquire as to whether your acceptance of the position being considered by Dauphin County would violate any written or understood ethics, rules, standards, laws or guidelines. You have submitted your resume and, for organizational documentation, you have included a page from the state phone directory that lists the PCCD's "Jail Overcrowding Program." The Department of Public Welfare has submitted your job description for your current position. PCCD has submitted the most recent job description it has on file for you, with an attached memo from the Director of the Bureau of Administration and Finance with PCCD, which memo indicates that just prior to your departing from PCCD your job description was being revised. The cover memo indicates that although your duties changed to some degree as a result of your internal transfer within PCCD, the submitted job description generally represents your major duties and responsibilities during your final year of employment with PCCD. The Director of the Bureau of Statistics and Policy Research with PCCD has also submitted a memorandum describing your job duties while under his supervision. All of the above documents are incorporated herein by reference, including your resume, the page from the state phone directory, and all of the submitted job descriptions and memoranda. Discussion: Initially, it must be noted that your inquiry may only be 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. As a Human Resources /Organizational Consultant classified as a Personnel Analyst III in the Office of Administration for 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. Additionally, in each of your former positions with PCCD for which you were classified as a Program Analyst III, you were a "public employee" as defined by the above cited sections of the Ethics Law and the Commission Regulations. These conclusions are based upon the submitted documents including your job descriptions and related memoranda, which when reviewed on an objective basis, indicate clearly that the power exists within these positions to take or recommend official action of a non - ministerial nature with respect to Mr. Balinger "Skip" Brown Page 3 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. Generally, in a request of this nature, the Commission would attempt to identify the governmental bodies with which you have associated during public employment. The restrictions which are set forth in the Ethics Law prohibiting "representation" before the governmental bodies would then be reviewed. However, in light of the particular circumstances involved herein, it appears that you would not be subject to these restrictions should you leave your present employment for employment with Dauphin County. The Commission has previously determined under former Act 170 of 1978 that where a public employee leaves one governmental body to accept employment with another governmental body, the Ethics Law would not restrict the ability to represent the new governmental body before the former governmental body. Heverlina, Advice 88 -540, reviews prior Commission decisions in this regard. Although these prior Commission decisions were under former Act 170 of 1978 and, therefore, would not be controlling in this case, the same reasoning set forth in those determinations would apply to this question under Act 9 of 1989. As the Commission has previously noted, the legislative intent was to prohibit the representation of persons in circumstances that may give rise to a conflict, that is, where the government employees or officials leave the public sector and enter the private sector. Heverlincr, Advice 88 -540 at 3. The Commission's conclusions have been primarily based upon the fact that where the post - Commonwealth employment is with another governmental body or entity, the concerns the legislature sought to address through former Section 3(e) of the Ethics Act were allayed or reduced because the new governmental employer could not be expected to seek to influence the governmental body formerly served by these individuals, in the same manner as a non - governmental employer would. Therefore, the Commission has concluded that the restrictions of former Section 3(e) would not be applicable in such circumstances. Id. at 4. Mr. Balinger "Skip" Brown Page 4 In Hagen, Opinion 84 -019, the Commission considered a situation similar to the circumstances presented in this case. Where a state employee left state service to accept employment with Montgomery County, the Commission concluded that the individual became a "former public employee" upon termination of Commonwealth service, but that the restrictions of former Section 3(e) would not restrict the individual's ability to represent the county before the former governmental body. Id. at 4. The Commission specifically addressed the questions of whether the county was a "person" as defined by the Ethics Act, and whether the Legislature could be said to have intended to apply the same restrictions under these circumstances where the post - Commonwealth employer is another level of government, as would be applied where a government employee leaves government and joins a private, profit- making enterprise. The definition of "person" was considered and the Commission stated its belief that the Legislature intended to prohibit the individual's activity or ability to represent "persons" in circumstances most likely to occur and most likely to give rise to a conflict, specifically, where a government employee leaves and enters the private sector. The Commission stated: In such a situation, the former public employee's ability to use his or her prior experience, influence, etc., with the agency he served to the new (private sector) employer's financial advantage is more apparent. Likewise, a prospective private sector employer, unlike a governmental employer, might be able and motivated to attempt to influence a public employee's judgment or conduct by the promise of future employment with the private sector employer. Similarly, in this situation, you would be leaving state employment to accept a governmental position with Dauphin County, and the reasoning set forth in prior decisions of the Commission would equally apply to your case. You would be considered a former public employee with regard to your Commonwealth employment, but the restrictions of Section 3(g) under present Act 9 would not apply to you under these circumstances. You are cautioned, however, that in your new capacity with Dauphin County you may be a "public employee" as defined in the Ethics Law and may therefore continue to be subject to the requirements of the Ethics Law in your new capacity. 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 anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Mr. Balinger "Skip" Brown Page 5 You will note that Sections 3(b) and 3(c) apply to everyone, whether or not the person is a public official or public employee. It is expressly assumed that there has been no such improper understanding between you and your prospective employer. Although the prohibitions of Section 3(g) would not restrict you in your prospective county employment, it is important to note that should you leave governmental employment, those restrictions would apply to you. In that event, you may seek further advice of the Commission with regard to the prohibitions and restrictions of the Ethics Law. 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 Personnel Analyst III with the Department of Public Welfare (DPW), you are to be considered a "public employee" as defined in the Ethics Law. Additionally, in each of your former positions with PCCD as a Program Analyst III, you were a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, you would be a "former public employee" as regards your Commonwealth employment. The former governmental bodies are PCCD and DPW. Section 3(g) of the Ethics Law would not restrict you in your prospective employment with Dauphin County. In the event you terminate governmental service, you would be subject to the restrictions of Section 3(g) the Ethics Law, and you may seek further advice from the Commission in that event. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, as long as you meet the definition of "public employee" as set forth in the Ethics Law, you are required to comply with the filing requirements for financial interests statements as set forth in Section 4 of the Ethics Law,.65 P.S.S404. When service is terminated, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. You are required to comply with these filing requirements with regard to each governmental body with which you have been or will be a "public employee ". 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. Mr. Balinger "Skip" Brown Page 6 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 52.12. Vincent . Dopko, Chief Counsel