Loading...
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