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HomeMy WebLinkAbout91-586 HaggertyMr. John J. Haggerty 1031 Park Street Scranton, PA 18509 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 1, 1991 91 -586 Re: Former Public Official; Section 3(g); School Director; Substitute Teacher for School District; Testing, Guidance and Counseling Services for School District or Vo -Tech. Dear Mr. Haggerty: This responds to your letter of August 31, 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 as a School Director on the Scranton School Board, specifically with regard to serving as a substitute teacher for the Scranton School District, or with regard to your providing testing, guidance and counseling services for disadvantaged public school students at the South Vocational Technical School where your reimbursement would either be received from the South Vo -Tech School pursuant to a contract between the Scranton School District and the Lackawanna County Vo -Tech School, or from Forum Psychologists which would contract with the Scranton School District. Facts: After noting that you retired in 1987 after thirty - eight years of service in the public schools in Northeastern Pennsylvania, mostly in the Scranton School District and NEIU #19 as Director of Special Education, you state that you are presently serving as a School Director on the Scranton School Board. Your four -year term expires on December 10, 1991 at which time you shall no longer be a Member of the Board. You seek the advice of this Commission regarding the following three options for prospective employment which you expect to have in January, 1992. The first option would be to work as a substitute teacher in the Scranton Public Schools for a maximum of two days a week in the areas of certification. Mr. John J. Haggerty October 1, 1991 Page 2 The second option would be to work with disadvantaged public school students in the building trades at the South Vo -Tech School. As a licensed psychologist in Pennsylvania and a certified guidance counselor, you would be involved in diagnostic testing and counseling. Working with the student's family and the Vo -Tech faculty would be most important. A G.E.D. program would be an educational component of the program. You note that the building trades program for disadvantaged youth at the South Vo -Tech had a closing of the school year class roster of eighteen in June, 1991. Eight of the students were from Scranton School District and the remaining ten were from the other participating school districts. All students in the class would receive testing, guidance and counseling services from you. An academic component would be built into the program for those eligible students in a G.E.D. program. Your reimbursement would be received from the South Vocational Technical School, but a contractual agreement between the Scranton School District and the Lackawanna County Vo -Tech School would be the conduit for your salary. Federal funds for the vocational training of disadvantaged youth would be used. Your third option would be similar to the second option except for the contractual financial agreement. The Scranton School District would contract with Dr. Anthony Galdieri of Forum Psychologists for the services to be given to the disadvantaged students, and your compensation would be paid by Forum Psychologists. You assure this Commission that at no time would you personally have any contract with the Scranton School District. Based upon all of the above, you request the advice of this Commission. Discussion: As a School Director for the Scranton School District, you are to be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of the Commission. 65 P.S. 402; 51 Pa. Code 1.1. Consequently, upon termination of public service, you would become a "former public official" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3 (g) employee promised . Restricted activities. No former public official or public shall represent a person, with or actual compensation, on any Mr. John J. Haggerty October 1, 1991 Page 3 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 were associated while working with the Scranton School District 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 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 Scranton School District. 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 the Scranton School District, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Scranton School District. Mr. John J. Haggerty October 1, 1991 Page 4 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..." Lectislative 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 were associated is the Scranton School District. However, your former governmental body would not include the South Vo -Tech School. The submitted facts establish that the Scranton School District is only one of the participating school districts serviced by the South Vo -Tech School. Thus, upon termination of service as a School Director for the Scranton School District, your former governmental body would not be extended to the South Vo -Tech but would be limited to the Scranton School District. 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. John J. Haggerty October 1, 1991 Page 5 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; 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 Mr. John J. Haggerty October 1, 1991 Page 6 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 the Scranton School District so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Scranton School District. Once again, however, the activity in this respect should not be revealed to the Scranton School District. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Scranton School District 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. Turning to your specific inquiry regarding your three options for prospective employment following termination of service with the Scranton School Board, each option will be addressed seriatim. The first option poses the question of whether you could serve as a substitute teacher in the Scranton Public Schools, working a maximum of two days a week in the areas of certification. The Ethics Law would generally not prohibit a former School Director from accepting full -time employment as an employee of the School District (In fact, such would also appear to be expressly permitted by the School Code under circumstances set forth in 24 P.S. $3 -324). However, the Ethics Law would prohibit service as a substitute teacher. As a substitute teacher, you would not be an employee of the School District, but rather you would be likened to a private consultant. Such conduct would constitute prohibited "representation" before the former governmental body. Thus, the Ethics Law would restrict you from serving as a substitute teacher for the Scranton Public Schools during the one -year period following termination of service on the Scranton School Board. Your second option appears to be in conformity with the Ethics Law. You would be working with disadvantaged public school students in the building trades at the South Vo -Tech School, receiving your reimbursement from the South Vo -Tech School pursuant to a contractual agreement between the Scranton School District and the Lackawanna County Vo -Tech School. Under this scenario, there would appear to be no representation by you before the former governmental body which, as discussed above, is Mr. John J. Haggerty October 1, 1991 Page 7 limited to the Scranton School District. This Advice, however, is expressly conditioned upon the assumption that the South Vo- Tech School is a separate governmental body from the Scranton School District, which assumption has been based upon your representations that the South Vo -Tech School serves other participating school districts as well as the Scranton School District. Option three would be similar to option two with the exception that your reimbursement would be by Forum Psychologists pursuant to its contract with the Scranton School District. This scenario would appear to be in conformity with the Ethics Law because there would be no representation by you before your former governmental body under the facts as you have submitted them. As discussed above, there is no prohibition under the Ethics Law which would prevent you from working for a private enterprise which contracts with your former governmental body. However, your conduct must comply with the restrictions of Section 3(g) as set forth above. 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. Specifically not addressed herein is the applicability of the School Code. Conclusion: As a School Director for the Scranton School District, you are to be considered a "public official" as defined in the Ethics Law. Upon termination of service as a School Director with the Scranton School District, you would become a "former public official" subject to Section 3(g.) of the Ethics Law. The former governmental body is the Scranton School District. The former governmental body would not include the South Vocational Technical School. However, this Advice is expressly conditioned upon your representations that the South Vocational Technical School serves other participating school districts as well as the Scranton School District. The Ethics Law would prohibit you from serving as a substitute teacher in Mr. John J. Haggerty October 1, 1991 Page 8 the Scranton School District during the one -year period following termination of service as a School Director for that District. The Ethics Law would not prohibit or restrict you from working with disadvantaged public school students in the building trades at the South Vocational Technical School, either where your reimbursement would be from the South Vocational Technical School pursuant to a contractual agreement between the Scranton School District and the Lackawanna County Vocational Technical School, or where your reimbursement would be from Forum Psychologists pursuant to a contract between that enterprise and the Scranton School District. 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 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