HomeMy WebLinkAbout93-583 McDonaldJames D. McDonald, Jr
The McDonald Group
456 West Sixth Street
Erie, PA 16507 -1216
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
AgreebVCCiNSL
July 21, 1993
., Esquire
93 -583
Re: Former Public Employee; Section 3(g); Erie County Mental
Health and Mental Retardation Administrator; Director of
Human Services for Erie County; President and Chief
Executive Officer of Erie County Services Support
Corporation as an Unpaid Position; Section 3(a); New
Employment; President and Chief Executive Officer of Erie
County Human Service Support Corporation as a Paid Position.
Dear Mr. McDonald:
This responds to your letter of July 8, 1993, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon an individual who serves as county
mental health /mental retardation administrator and director of
county human services who is also a non - compensated president and
chief executive officer of a county human services support
corporation with regard to prospective employment as a
compensated president and chief executive officer of the same
corporation, upon resignation from the two county positions; and
also, whether the Ethics Law presents any restrictions upon that
employment.
Facts: You represent James N. Herr and request an advisory on
his behalf. Mr. Herr currently holds three positions relating to
human service programs in Erie County. He serves as County
Mental Health and Mental Retardation Administrator, Director of
Human Services for Erie County, and President and Chief Executive
Officer of Erie County Human Services Support Corporation
(Corporation). Mr. Herr receives no compensation in his position
as President and Chief Executive Officer of the Corporation.
You refer to McDonald, Advice No. 92 -579, and incorporate
herein the following documents which were submitted with the
request for that Advice. Those documents are:
James D. McDonald, Jr., Esquire
July 21, 1993
Page 2
1. Job description of James N. Herr;
2. By -laws of Erie County Human Services Support
Corporation;
3. Organizational Chart of Erie County;
4. Packet containing the initial Articles of Incorporation
of Erie County Human Services Support Corporation; and
5. County of Erie Three -Year Plan 1992 -1994.
Advice 92 -579 concluded that as the Director of Human
Services and Mental Health and Mental Retardation Administrator
for the County of Erie, Mr. Herr is a "public employee" subject
to the provisions of the Ethics Law. As a public
official /employee, Mr. Herr was able, consistent with Section
3(a) of the Ethics Law, to simultaneously serve in the aforesaid
positions of Director of Human Services and Mental Health and
Mental Retardation Administrator for the County of Erie while
also serving as the President and Chief Executive Officer of the
Erie County Human Services Support Corporation.
Mr. Herr's job description issued by the Erie County
Executive specifically defines and coordinates activities in all
three positions. Therefore, the multiple positions were
integrated into one job description for purposes of
responsibility and coordination within Erie County.
Currently, the By -laws of the Corporation provide that the
President and Chief Executive Officer shall be the incumbent in
the office of the Erie County Director of Human Services. By
mutual agreement between the Corporation and the Erie County
Executive, the Corporation shall be restructured by October 1,
1993, to be at arms- length from the County and the County Human
Services Program. Accordingly, the Corporation will modify the
By -law provisions to provide that the position of President and
Chief Executive Officer shall be a full -time paid position and to
delete that the President and Chief Executive Officer shall be
the incumbent Erie County Director of Human Services. Similarly,
the job description issued by the Erie County Executive will be
modified to delete the reference to the Director of Human
Services for Erie County also serving as the President and Chief
Executive Officer of the Corporation. In other respects, the
Corporation will continue to function in the system of human
services administered by Erie County, as well as such other
endeavors as may be determined from time to time consistent with
its charitable charter.
The Corporation is a non - profit charitable corporation
charged with providing human services. The County uses the
Corporation as a mechanism to provide flexibility in the
application for human service grants and in the administering of
its programs. The Corporation acts as a landlord and provides
James D. McDonald, Jr., Esquire
July 21, 1993
Page 3
specialized case management units for the County's human service
programs through its Computer Service Bureau.
Based upon the above, you request an advisory from the State
Ethics Commission as to whether Mr. Herr may be considered for
and accept the position of President and Chief Executive Officer
of Erie County Human Services Support Corporation, as it is
redefined to reflect its full -time responsibility and paid
executive status, after resigning from the positions of County
Mental Health and Mental Retardation Administrator and Director
of Human Services for Erie County.
Discussion: As the Director of Human Services and Mental Health
and Mental Retardation Administrator for Erie County, Mr. James
N. Herr is 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. §402; 51 Pa. Code §11.1.
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
of his immediate family or a business with
James D. McDonald, Jr., Esquire
July 21, 1993
Page 4
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
unique to a particular public office or
position of public employment.
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 anything 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 been or will be any transgression
thereof but merely to provide a complete response to the question
presented.
In applying the above provisions of the Ethics Law to the
circumstances which you have submitted, pursuant to Section 3(a)
of the Ethics Law, a public official /public employee is
prohibited from using the authority of public office /employment
or confidential information received by holding such a public
position for the private pecuniary benefit of the public
official /public employee himself, any member of his immediate
family, or a business with which he or a member of his immediate
family is associated. Although Section 3(a) of the Ethics Law
would not preclude Mr. Herr from being considered or hired for
the full -time, compensated position of President and Chief
Executive Officer of Erie County Human Services Support
Corporation, Section 3(a) would prohibit him from using
confidential information or the authority of office to advance
his own selection or eliminate any competitors for that position.
Thus, although Mr. Herr may apply for that position and
submit his resume and present qualifications in an interview
pursuant thereto, he could not use the authority of his public
office as a means in whole or part to promote his employment or
conversely to eliminate any competitors for the position.
Pepper, Opinion No. 87 -008. Subject to the qualifications as
noted above, Section 3(a) of the Ethics Law would not prohibit
Mr. Herr's prospective employment in the compensated position of
President and Chief Executive Officer of the Corporation.
The more important question that needs to be addressed,
however, is what restrictions on such employment would apply to
Mr. Herr, upon termination of public service. Although you do
James D. McDonald, Jr., Esquire
July 21, 1993
Page 5
not specifically request advice as to this issue, it nevertheless
must be reviewed. Upon termination of public service, Mr. Herr
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 address this issue, the governmental body with
which Mr. Herr is associated while working as Director of Erie
County Human Services and Mental Health and Mental Retardation
Administrator 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 Mr. Herr is
associated upon termination of public service would be Erie
County, in its entirety. 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
James D. McDonald, Jr., Esquire
July 21, 1993
Page 6
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 Erie County, Section 3(g) of the Ethics Law would
apply and restrict representation of persons or new employers
vis -a -vis Erie County.
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. 51901, it is clear that the governmental body with
which Mr. Herr is associated is Erie County.
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.
James D. McDonald, Jr., Esquire
July 21, 1993
Page 7
In respect to the one year restriction against such
"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.
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 by 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. In Shav, Opinion 91 -012, the Commission held
that Section 3(g) would prohibit the inclusion of the name of a
former public official /public employee on invoices submitted by
his new employer to the former governmental body, even though the
invoices pertained to a contract which existed prior to
termination of public service. Therefore, within the first year
after termination of service, he should not engage in the type of
activity outlined above.
Mr. Herr may assist in the preparation of any documents
presented to Erie County. However, he may not be identified on
documents submitted to Erie County. Mr. Herr may also counsel
James D. McDonald, Jr., Esquire
July 21, 1993
Page 8
any person regarding that person's appearance before Erie County.
Once again, however, the activity in this respect should not be
revealed to Erie County. Of course, any ban under the Ethics Law
would not prohibit or preclude the making of general
informational inquiries of Erie County 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, 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.
In Confidential Opinion 93 -005, the Commission held that
Section 3(g) precludes a former public official /employee from
providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
In this case, the Ethics Law does not prohibit Mr. Herr from
serving in the compensated position of President and Chief
Executive Officer of the Erie County Human Services Support
Corporation when it is restructured to be at arms- length from the
county. Serious questions, however, are raised as to the
practical ability to effectively serve in that position. In this
situation, when constant contact with the county is required, it
is difficult, if not impossible, to imagine a situation where Mr.
Herr could effectively lead the corporation and not violate the
Ethics Law. In light of Mr. Herr's employment and interaction
with the county and the Corporation, it is inconceivable that his
work with the corporation in its new form would not be known to
the county. The stated purpose of the Corporation is to provide
human services and it does so by constantly interacting with Erie
County. Mr. Herr would be unable to provide such services
without engaging in the activities Section 3(g) was specifically
designed to prohibit. Thus, while Mr. Herr would not be
prohibited from seeking and accepting the position, he is limited
in his practical ability to perform the required job based upon
the restrictions set forth above.
James D. McDonald, Jr., Esquire
July 21, 1993
Page 9
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 the Director of Human Services for Erie County
and County Mental Health and Mental Retardation Administrator,
Mr. James N. Herr is to be considered a "public employee" as
defined in the Ethics Law. Although Section 3(a) of the Ethics
Law would not preclude him from being considered for and
accepting the compensated position of President and Chief
Executive Officer of the Erie County Human Services Support
Corporation, Section 3(a) would prohibit him from using the
authority of office or confidential information as a means of
promoting such prospective employment or eliminating competitors.
Further, upon termination of service with Erie County, Mr. Herr
would become a "former public employee" subject to Section 3(g)
of the Ethics Law. The former governmental body is Erie County,
in its entirety. 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.
such.
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 513.2(h).
ere ; , •
Vincent t . Dopko
Chief Counsel