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HomeMy WebLinkAbout97-501 ZimmermanCharles H. Zimmerman 100 West Carbondale Road Waymart, PA 18472 Dear Mr. Zimmerman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 2, 1997 97 -501 Re: Former Public Employee; Section 3(g); Pennsylvania Department of Corrections; Superintendent; State Correctional Institution at Waymart. This responds to your letter of November 27, 1996 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 the Superintendent of a State correctional institution following termination of service with the Pennsylvania Department of Corrections. Facts: You are currently the Superintendent of the State Correctional Institution at Waymart (SCI Waymart). You have been offered employment with Corrections Physicians Services (CPS) of Blue Bell, Pennsylvania. If you were to accept the position with CPS, your duties would include administering a regional contract for CPS in New York state. You state that CPS currently contracts with Pennsylvania's Department of Corrections administering health care for all correctional institutions in the Eastern region, including SCI Waymart. You state that you had no part in awarding the contract to CPS, although you are the administrator in charge of SCI Waymart and as such have administrative and supervisory responsibility for the Health Care Administrator through the Deputy Superintendent for Centralized Services. The Health Care Administrator has on -site responsibility for monitoring contract compliance of CPS. Your specific inquiries are as follows: 1. Whether you may accept employment with CPS upon retirement from state service without violating the Ethics Law or other state regulations? 2. At what point may you work in Pennsylvania for CPS or any other private agency doing business with the Commonwealth of Pennsylvania? Zimmerman, 97 -501 January 2, 1997 Page 2 3. Whether there are any other considerations and /or limitations on private employment after retirement? Copies of your job description and job classification specification have been obtained, which documents are incorporated herein by reference. Discussion: It is initially noted that you have inquired as to the restrictions that will apply to you upon leaving Commonwealth employment, and accordingly, this Advice is limited to addressing those particular restrictions of the Ethics Law. As the Superintendent of SCI Waymart with the Department of Corrections, 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 § 1 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimis on the interests of another person. Upon termination of public service, you 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 answer your request the governmental body with which you were associated while working with SCI Waymart 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 Zimmerman, 97 -501 January 2, 1997 Page 3 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. 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, the governmental body with which you are associated upon termination of public service would be the Pennsylvania Department of Corrections 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 the Pennsylvania Department of Corrections, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Pennsylvania Department of Corrections. 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: Zimmerman, 97 -501 January 2, 1997 Page 4 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. Section 3(g) would also prohibit in general 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 pertain to a contract which existed prior to termination of public service. Shay, Opinion 91 -012. However, in the event of work performed on a contract already awarded and not involving the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95 -01 1. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities outlined above. You may assist in the preparation of any documents presented to the Pennsylvania Department of Corrections. However, you may not be identified on documents submitted to the Pennsylvania Department of Corrections. You may also counsel any person regarding that person's appearance before the Pennsylvania Department of Corrections. Once again, however, the activity in this respect should not be revealed to the Pennsylvania Department of Corrections. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Pennsylvania Department of Corrections 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. Zimmerman, 97 -501 January 2, 1997 Page 5 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. 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. Having set forth the above, your specific inquiries shall now be addressed. In response to your first specific inquiry, Section 3(g) of the Ethics Law would not preclude you from accepting employment with CPS. As for any other laws, codes, policies, or regulations, such may not be addressed within the context of this Advice in that the State Ethics Commission does not have the statutory jurisdiction to interpret them. In response to your second specific inquiry, Section 3(g) would not preclude you from working in Pennsylvania for CPS or any other private agency, but you would be required to observe the restrictions of Section 3(g) set forth above, which would preclude representation of CPS before your former governmental body, the Pennsylvania Department of Corrections. Again, the restrictions of Section 3(g) would apply for one year following the termination of your service with the Pennsylvania Department of Corrections. Based upon the facts which you have submitted, your third inquiry has been adequately addressed above, insofar as the Ethics Law is concerned. 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: As the Superintendent of the State Correctional Institution at Waymart (SCI Waymart) with the Pennsylvania Department of Corrections, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Pennsylvania Department of Corrections, you would become a "former Zimmerman, 97 -501 January 2, 1997 Page 6 public employee" subject to Section 3(g) of the Ethics Law. The former governmental body would be the Pennsylvania Department of Corrections 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. This letter is a public record and will be made available as such. 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 §1a207). 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. cerely, Vincent J. D'opko Chief Counsel � �o