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HomeMy WebLinkAbout95-572 PetrinaSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 5, 1995 John J. Petrina 4402 Avon Drive Harrisburg, PA 17112 95 -572 Re: Former Public Employee; Section 3(g); Sign Technician Supervisor; Department of General Services. Dear Mr. Petrina: This responds to your letter of May 9, 1995, 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 sign technician supervisor following termination of service with the Department of General Services (DGS). Facts: You were a sign technician with DGS until you retired in December 1994. You are currently self employed as a commercial artist. You stated it was your understanding that those persons required to file the financial disclosure form or code of ethics for while employed by the Commonwealth are required to wait one year after leaving state service before performing similar type of work with any agency or entity under the Governor's jurisdiction. You also state the Governor's Office of Administration (OA) informed you that, since you were never required to submit either of those forms while employed by DGS, the waiting period does not apply to you. You request advice from the Commission under the Ethics Law. You specifically ask if you must wait for any period or if you are now permitted to take on artist type jobs, in particular indoor and outdoor signage, for the Pennsylvania General Assembly and /or the state executive branch. Discussion: The first question to be answered is whether you, in your capacity as a sign technician supervisor for DGS, were considered a "public employee." The Ethics Law defines that term as follows: Petrina, John J., 95 -572 June 5, 1995 Page 2 65 P.S. 5402. Section 2. Definitions "Public employee." Any the Commonwealth or a who is responsible for official action of a with regard to: individual employed by political subdivision taking or recommending nonministerial nature contracting or procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individ- uals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. The regulations of the State Ethics Commission similarly define the term public employee as above with the additional following criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. Petrina, John J., 95 -572 June 5, 1995 Page 3 (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. Petrina, John J., 95 -572 June 5, 1995 Page 4 51 Pa. Code §11.1. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. The question you present must be reviewed under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your job description and /or classification specifications, under which you operated. The inquiry necessarily focuses on the job itself and not on the individual incumbent in the position, the, variable functions of the position, or the manner in which a particular individual occupying a position might have carried out those functions. See Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your question,. the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs that coverage of the Ethics Act be construed broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, the necessary conclusion that you Petrina, John J., 95 -572 June 5, 1995 Page 5 were a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in your capacity as a sign technician supervisor, you had the ability to recommend official action with respect to subparagraph (1) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, a sign technician supervisor "orders supplies necessary to complete work requests, . . . must anticipate and order inventory for future jobs. . . .[and p]repares [a] list of materials and source of suppliers to different state agencies." A sign technician supervisor also " [r] eview [s] and write [s] bid specs for equipment and or supplies and submit [s] through proper channels to procure such items." These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 11.1, subparagraph (i)(A), (ii)(G), and (ii)(I). 51 Pa. Code §11.1. Under these circumstances and given your former duties and responsibilities as outlined above, you were a "public employee" as that term is defined in the Ethics Law. Accordingly, you must file a Statement of Financial Interests for each year in which you hold the position outlined above and for the year following your termination of this service. You state in your letter, OA informed you that you were not required to file a "financial disclosure form" or a "code of ethics form" while you were employed by DGS. However, because you were a "public employee" as defined under the Public Official and Employee Ethics Law, you were required to file a "Statement of Financial Interests" as stated in this law. The other form you referenced, the "code of ethics form," appears to be the form some individuals must file as required by the Governor's Code of Ethics. The Commission has no jurisdiction over the Governor's Code of Ethics nor of the forms required to be filed under it. Therefore, this advice is limited to the requirements of the Public Official and Employee Ethics Law. Your letter was not clear on whether you had indeed filed Statements of Financial Interests while you were a DGS employee or whether you filed one for the year following your termination of service. If you have not already done so, the appropriate Statements of Financial Interests must be filed within 30 days of this Advice. This advice now turns to restrictions the Ethics Law places on former public employees. Because you were considered a public employee while working for DGS, upon termination of public service, you became 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: Petrina, John J., 95 -572 June 5, 1995 Page 6 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 questions concerning restrictions the Ethics Law places on you as a former public employee, the governmental body with which you were associated while working with DGS 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 DGS. 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 DGS, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DGS. Petrina, John J., 95 -572 June 5, 1995 Page 7 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 which you were associated is DGS. 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 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 Petrina, John J., 95 -572 June 5, 1995 Page 8 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 Shay, 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, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to DGS. However, you may not be identified on documents submitted to DGS. You may also counsel any person regarding that person's appearance before DGS. Once again, however, the activity in this respect should not be revealed to DGS. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DGS 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: Petrina, John J., 95 -572 June 5, 1995 Page 9 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 your letter you ask if you must wait for any period of time before you take on artist type jobs, in particular indoor and outdoor signage, for the General Assembly or the state executive branch. First, as described above, the one year prohibition is on "representation" and not just on "artist type jobs." Second, the Ethics Law places the one -year prohibition on you with respect to representing a person before DGS, your former governmental body. Because the General Assembly and executive agencies other than DGS are not your former governmental body, the prohibition on representation would not apply with respect to them. If, however, to perform artist type work for one of these other governmental bodies you must contract with or "represent" yourself before DGS, such conduct would be prohibited under the one -year prohibition. Furthermore, 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. 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. 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 sign technician supervisor, you were considered a "public employee" as defined in the Ethics Law. As such, you were required to file Statements of Financial Interests for each year you held the position noted above. Upon termination of service with DGS, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is Petrina, John J., 95 -572 June 5, 1995 Page 10 DGS. The restrictions as to representation followed. The propriety of the proposed addressed under the Ethics Law. Further, as outlined above, the Ethics a Statement of Financial Interests be filed 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ncerely, incent Dopko Chief Counsel outlined above must be conduct has only been Law also requires that for the year following