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HomeMy WebLinkAbout95-618 StaubShalom Staub, Ph.D. 3489 Green Street Harrisburg, PA 17110 Dear Dr. Staub: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 28, 1995 95 -618 Re: Former Public Official; Section 3(g); Executive -Level State Employee; Section 3(i); Executive Director, Pennsylvania Heritage Affairs Commission. This responds to your letter of October 23, 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 former public official following termination of service as Executive Director of the Pennsylvania Heritage Affairs Commission. Facts: Effective October 20, 1995 you resigned as Executive Director of the Pennsylvania Heritage Affairs Commission. Presently you are working for the Institute for Cultural Partnerships, a non - profit corporation. You indicate that as part of the dismantling of the Department of Community Affairs, the Administration has indicated that it is weighing the possibility of "privatizing" the programs and services of the Pennsylvania Heritage Affairs Commission. You state that this would mean eliminating state - funded positions and contracting out the services funded with federal allocations, specifically the Refugee Program Management. As of June 30, 1996, under the privatization scenario, the Pennsylvania Heritage Affairs Commission would no longer exist. You pose the following questions: (1) If the Pennsylvania Heritage Affairs Commission /Department of Community Affairs is not Staub, Shalom, 95 -618 November 28, 1995 Page 2 dismantled, but decides to contract out the management of the Refugee Program, you ask whether you individually or the Institute for Cultural Partnerships as a corporation would be prohibited by the Ethics Law from soliciting that contract; (2) If the Pennsylvania Heritage Affairs Commission /Department of Community Affairs ,x dismantled and another state agency for which you did not work and with which you had no prior relationship, such as the Department of Public Welfare, contracts out the management of the Refugee Program, you ask whether you individually or the Institute for Cultural Partnerships as a corporation would be prohibited by the Ethics Law from soliciting that contract. As a footnote to the facts which you have submitted, the Pennsylvania Heritage Affairs Commission, which was previously established by Executive Order of the Governor, is now statutorily established within the Department of Community Affairs. 71 P.S. §1090.3(a). It is further noted that the Executive Director participates with the Executive Committee of the Pennsylvania Heritage Affairs Commission in making recommendations for gubernatorial appointments to the Folklife Advisory Council. The Folklife Advisory Council advises the Director of State folklife programs. The Director of State folklife programs is appointed by the Executive Director upon recommendation of the Folklife Advisory Council. Piscussion: In your former capacity as the Executive Director of the Pennsylvania Heritage Affairs Commission, you would be considered a public official /public employee and an "executive - level state employee" within the definition of those terms 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: Staub, Shalom, 95 -618 November 28, 1995 Page 3 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. 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(g) of the Ethics Act provides that: Staub, Shalom, 95 -618 November 28, 1995 Page 4 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. 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 an opportunity of private employment with the Institute for Cultural Partnerships. 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. As for Section 3(i) of the Ethics Law, you are subject to that provision of law since you are a former executive -level state Staub, Shalom, 95 -618 November 28, 1995 Page 5 employee. However, Section 3(i) would not restrict you from the position of employment with the Institute for Cultural Partnerships provided and conditioned upon the assumption that you did not actively participate in recruiting or inducing the Institute for Cultural Partnerships to open or expand a facility or branch in the Commonwealth through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to the Institute for Cultural Partnerships. Upon termination of public service, you also became a "former" public official /public employee subject to Section 3(g) of the Public Official and Employee Ethics Law. To answer your request with respect to Section 3(g), the governmental body with which you have been associated while working with the Pennsylvania Heritage Affairs Commission 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. 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 Staub, Shalom, 95 -618 November 28, 1995 Page 6 agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. Based upon the above, at this point in time, the governmental body with which you have been associated includes the Pennsylvania Heritage Affairs Commission, the Folklife Advisory Council, and the Department of Community Affairs. 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. Should the functions, programs, and /or services of your former governmental body be funneled to other governmental units or agencies during the one -year period of applicability of Section 3(g), your former governmental body would then also include such other units or agencies. Specifically, if a transferred function would be contained within a particular unit or units at the acquiring agency, your former governmental body would include the specific unit(s). If, on the other hand, the transferred function would permeate an entire agency, your former governmental body would then include that agency in its entirety. Given the present uncertainty of any ultimate transferring of functions from your former governmental body as it is presently constituted, this Advice must necessarily be limited to providing the above general guidance in this regard. You may seek further advice from this Commission as to any changes to the identity of your former governmental body as additional facts develop. Therefore, within the first year after termination of service with the Pennsylvania Heritage Affairs Commission, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis your former governmental body, specifically the Pennsylvania Heritage Affairs Commission, the Folklike Advisory Council, the Department of Community Affairs, and possibly other units or agencies to which functions may eventually be transferred. 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 Staub, Shalom, 95 -618 November 28, 1995 Page 7 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; 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 Staub, Shalom, 95 -618 November 28, 1995 Page 8 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 your former governmental body. However, you may not be identified on documents submitted to your former governmental body. You may also counsel any person regarding that person's appearance before your former governmental body. Once again, however, the activity in this respect should not be revealed to your former governmental body. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your former governmental body 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. Turning to your specific inquiries, it is initially noted that the restrictions of Section 3(g) apply to restrict your conduct, rather than the conduct of the Institute for Cultural Partnerships. Specifically, as to your first question, if the Pennsylvania Heritage Affairs Commission /Department of Community Affairs would not be dismantled and would decide to contract out the management of the Refugee Program, any solicitation for that contract by you would have to conform to the requirements of Section 3(g) as set forth above. Obviously, depending upon the process for soliciting the contract, you could encounter logistical problems in soliciting the contract without running afoul of Section 3(g). An example would be if your name would have to be included on documents submitted to your former governmental body. With regard to your second specific inquiry, as noted above, the restrictions of Staub, Shalom, 95 -618 November 28, 1995 Page 9 Section 3(g) would restrict your conduct insofar as it would constitute representation before your former governmental body. If an agency such as the Department of Public Welfare would take over the function of contracting out the management of the Refugee Program, your former governmental body would then include that unit or agency as discussed more fully above, and the restrictions of Section 3(g) would apply to restrict you before it as well. 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 Governor's Code of Conduct. Conclusion: In your former capacity as Executive Director of the Pennsylvania Heritage Affairs Commission, 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 accepting a position of employment with the Institute for Cultural Partnerships based upon the assumption that in your former public position, you did not actively participate in inducing or recruiting it 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 the Pennsylvania Heritage Affairs Commission, you became a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is the Pennsylvania Heritage Affairs Commission, the Folklife Advisory Council, and the Department of Community Affairs, but it will additionally include units or agencies to which functions, programs and /or services of the aforesaid are transferred under the parameters set forth above. 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. Staub, Shalom, 95 -618 November 28, 1995 Page 10 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. Vincent J. Dopko Chief Counsel