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HomeMy WebLinkAbout95-610 TaylorDear Mr. Taylor: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 23, 1995 Mr. George B. Taylor 2422 Harvard Avenue 95 -610 Camp Hill, PA 17011 Re: Former Public Official /Employee; Section 3(g); Executive -Level State Employee; Section 3(i); Deputy Secretary; DPW; Consultant; Subcontract. This responds to your letters of September 15 and September 19, 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 Deputy Secretary following termination of service with the Commonwealth of Pennsylvania, Department of Public Welfare, particularly with regard to consulting work and being described but not named as a subcontractor on a proposal which could be reviewed by DPW. Facts: You retired in April, 1995, having worked twenty -six years for the Commonwealth of Pennsylvania. You spent the last eight years of your employment as a Deputy Secretary within the Department of Public Welfare (DPW). Presently you have the opportunity to start your own business as a self - employed consultant to older people and their families. As a consultant, you will offer custom designed services to assist families in determining what private sector services are needed to help elderly family members achieve the highest possible quality of life. Your services will include assessment of each client's needs, the development of a service plan, service coordination and referral and ongoing monitoring of the client's status. You state that in your capacity as a consultant you will have no contact with DPW and your clients will be private paying, "middle income" families. Taylor, George B., 95 -610 October 23, 1995 Page 2 Presently you also have an opportunity to enter into a contractual relationship with the Pennsylvania Coalition of Citizens with Disabilities (PCCD), a private non - profit organization. You state that PCCD will submit a proposal to the Pennsylvania Developmental Disabilities Planning Council ( PDDPC). The proposal involves the training of "grass- roots" advocacy organizations. If PCCD is awarded the contract they will subcontract with individuals to provide this local training. PDDPC is administratively linked with DPW, however, you state that your contract with PCCD will not cause you to contract directly with either PDDPC or DPW. With its proposal, PCCD must submit to PDDPC the qualifications of each of PCCD's subcontractors. To avoid identifying yourself to PDDPC or DPW, you prepared the following language for inclusion in the PCCD proposal, which language describes your qualifications without revealing your name or former position in DPW: An individual who has served at the Executive level in several human services agencies and was involved in a variety of programs and services for persons with disabilities will be a member of the team. This member has many years of experience in systems change and policy development. Because PDDPC is administratively located within the Department of Public Welfare (DPW) and this individual was associated with DPW for part of his /her career, this person's name may not be used on this application. You feel that the above language does not provide sufficiently specific information so as to identify you. You believe that by not identifying yourself, you would be in compliance with the Ethics Law. You ask whether the Ethics Law would restrict you as to either of the above matters. Discussion: In your former capacity as a Deputy Secretary for DPW, you would 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. In addition, you would be considered an executive -level state employee as that term is defined under the Ethics Law, and hence you would also be subject to the requirements of Section 3(i) of the Ethics Law, infra. The following provisions of the Ethics Law are set forth for your reference. Taylor, George B., 95 -610 October 23, 1995 Page 3 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 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. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. Taylor, George B., 95 -610 October 23, 1995 Page 4 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. Section 3(i) of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Under Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of public office/ employment or confidential information received by holding such a public position for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In applying Section 3(a) of the Ethics Law to the proffered facts, Section 3(a) would prohibit you from using the position or emoluments of your public position or confidential information -to advance a private business opportunity or an opportunity of private employment. Once again, it is not suggested that you have engaged in such conduct and the foregoing is provided to give a complete response to your inquiry. Taylor, George B., 95 -610 October 23, 1995 Page 5 As to Section 3(i) of the Ethics Law, you would be subject to that provision of law since you were an executive -level state employee. However, Section 3(i) would not restrict you if you did not actively participate in recruiting or inducing a business or corporation to open a new facility or branch in the Commonwealth or participate in inducing a business or corporation to expand an existing plant or facility that was accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to such business or corporation. If you did so participate, the restrictions of Section 3(i) would apply, but not as to other persons or entities. The facts do not indicate whether you actively participated in recruiting or inducing PCCD to open a new facility or branch or expand through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Conditioned upon the assumption that there has been no active participation by you in such recruitment or inducement of PCCD to open or expand a facility or branch through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania, you would not be prohibited from contracting with PCCD. Upon termination of public service, you became a "former" public official /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. Restricte. 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 request the governmental body with which you have been associated while working with DPW 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 Taylor, George B., 95 -610 October 23, 1995 Page 6 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 have been associated upon termination of public service would be DPW 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 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 DPW, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW in its entirety. 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. Taylor, George B., 95 -610 October 23, 1995 Page 7 C.S.A. §1901, it is clear that the governmental body with which you have been associated is DPW in its entirety. 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 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; Taylor, George B., 95 -610 October 23, 1995 Page 8 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 DPW. However, you may not be identified on documents submitted to DPW. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW 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. Having set forth the above, your specific inquiries shall now be addressed. Taylor, George B., 95 -610 October 23, 1995 Page 9 With regard to starting your own business as a consultant to older people and their families, you have assured the Commission that you would have no contact with DPW. Therefore, as long as your conduct is in conformity with the principles set forth above, the Ethics Law would not preclude you from pursuing this opportunity. With regard to your proposed contract with PCCD to provide services as a subcontractor on a proposal to be submitted to PDDPC, you have indicated that PDDPC ,. "administratively linked" with DPW. However, you have indicated that you would not be contracting directly with PDDPC or DPW. You have proposed particular language for the PCCD proposal, with which you hope to fulfill PDDPC's requirement that the qualifications of subcontractors be provided, yet avoid identifying yourself in contravention of Section 3(g). This language does appear to be sufficiently non - specific so as to preclude any identification of you in particular. The inclusion of this language in PCCD's proposal would not transgress Section 3(g) 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. Specifically not addressed herein is the Governor's Code of Conduct. Conclusion: In your former capacity as a Deputy Secretary for the Commonwealth of Pennsylvania, Department of Public Welfare (DPW) you would be considered a public official /public employee and an executive -level state employee subject to the provisions of the Ethics Law. Under Section 3(i) of the Ethics Law, you would not be prohibited from contracting with a business or corporation such as the Pennsylvania Coalition of Citizens with Disabilities (PCCD), conditioned upon the assumption that you did not actively participate in inducing or recruiting said business or corporation to open or expand a facility or branch through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Upon termination of service with DPW, you became a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is DPW 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, where service has been terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Taylor, George B., 95 -610 October 23, 1995 Page 10 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. Sincerely, Vincent J. Dopko Chief Counsel