HomeMy WebLinkAbout97-537 SheehanJim Sheehan
Chief Counsel
Department of Education
Office of Chief Counsel
333 Market Street
Harristown 2, 9th Floor
Harrisburg, PA 17126 -0333
Dear Mr. Sheehan:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 7, 1997
97 -537
Re: Former Public Employee; Section 3(g); Department of Education; Director of
Bureau of Curriculum and Academic Services; Governor's Advisory Commission
on Academic Standards; Service Purchase Contract.
This responds to your letter of February 5, 1997 in which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents any
restrictions upon a former Department of Education employee, specifically the Director
of the Bureau of Curriculum and Academic Services, with regard to entering into a
temporary contract for professional services with the Department of Education during
the first year following termination of her employment with that Department.
Facts: On behalf of Secretary Hickok and former Department of Education
employee, Amy Morton (Morton), you request an advisory as to a proposed
professional services contract between Morton and the Department of Education.
Morton served as the Director of the Bureau of Curriculum and Academic
Services from April 1, 1996 until December 20, 1996. Her work involved policy,
budget, program management and administration of that bureau which provides
consultative leadership and direct support to Commonwealth schools. Morton oversaw
the bureau's activities in policy development, service coordination, communication and
evaluation of programs and services. She also acted as liaison to and with other
bureaus of the agency, other agencies and organizations, and with the higher
education community. You have submitted a copy of her job description which is
incorporated herein by reference.
Sheehan /Morton, 97 -537
March 7, 1997
Page 2
On September 30, 1996, the Governor issued Executive Order 1996 -6 (a copy
of which was submitted and is incorporated herein by reference) which established the
Governor's Advisory Commission on Academic Standards (Advisory Commission). The
purpose of the Advisory Commission is to obtain and consider ideas and proposals
regarding academic standards from the citizens throughout the Commonwealth,
particularly parents and community business leaders. The Advisory Commission was
also charged with creating and recommending for adoption a regular set of standards
and issuing a report to the Governor containing its findings and recommendations.
The Secretary of Education (who also serves as a member of the Advisory
Commission) would like the Department of Education to enter into a short-term Service
Purchase Contract (SPC) with Morton. Pursuant to the terms of that SPC, Morton
would be asked to: (1) edit drafts of the standards in the four subject areas
(mathematics, science, reading, and writing) to reflect the input of the Advisory
Commission; (2) finalize the standards in versions to be disseminated to the public and
to the field; and (3) assist in developing a plan for dissemination of the standards to
the field and public at large. The contract does not require Morton to do any work in
the assessment or any other subject areas. The contract would call for 20 full days
of work at $500 per day and an additional $5,000 to cover travel expenses at current
state rates. You state that the per diem rate which Morton generally charges is
$ 1,000, but, as a favor to the Department, she will work at half her normal rate. You
have submitted a sample contract which is incorporated herein by reference.
You note that Morton's proposed work for the Department will not inure to the
benefit of her present employer, the Gettysburg Area School District.
You state that you have reviewed what you consider to be the pertinent
sections of the Ethics Law as well as various Advices of Counsel issued in 1981 and
1985. It is your view that there does not appear to be any statutory language,
regulation, or opinion which would prohibit a former employee from signing an
unsolicited temporary service contract which is presented to her by her former
employer.
You contend that the proposed hiring of Morton would not violate Section 3(f)
of the Ethics Law because Morton is not currently associated with the Department of
Education in any material way.
It is your belief that the proposed consulting contract would not violate Section
3(i) because Morton did not have a hand in creating or bringing the business into the
Commonwealth.
You also contend that the proposed contract would not violate Section 3(g) of
the Ethics Law because it is your view that Morton would not be representing any
entity before her former governmental body, but rather, would be performing specific
tasks in response to a request from the Secretary of Education. You state that Morton
would be representing the Department.
Finally, you do not believe that Morton's situation is covered by Section 3(c)
because she did not solicit or accept a promise of future employment at any time
during her tenure as Director of the Bureau of Curriculum and Academic Services.
Sheehan /Morton, 97 -537
March 7, 1997
Page 3
You ask whether the contract with Morton must be done through an open and
public process including prior public notice, prior public disclosure of all proposals
considered, and public disclosure of the award of the contract.
You also ask whether Morton's limited 20 -day contract with the Department
would cause her to be considered a "public employee."
Discussion: In her former capacity as Director of the Bureau of Curriculum and
Academic Services with the Department of Education, Morton 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.
Consequently, upon termination of public service, Morton became a "former
public employee" automatically 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.
For the reasons set forth below, Section 3(g) would prohibit Morton from entering into
the proposed short -term Service Purchase Contract with the Department of Education
during the first year following termination of her employment with that Department.
It is initially noted that the governmental body with which Morton has been
associated while working with the Department of Education is the Department of
Education in its entirety, not merely the Bureau of Curriculum and Academic Services.
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.
Act 9 of 1989 significantly broadened the definition. It was the specific intent of the
General Assembly to define the term so that it was not merely limited to the area
Sheehan /Morton, 97 -537
March 7, 1997
Page 4
where a public official /employee had influence or control but extended to the entire
governmental body with which the public official /employee was associated:
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.
Consequently, the governmental body with which Morton has been associated upon
termination of public service is the Department of Education in its entirety, including
but not limited to the Bureau of Curriculum and Academic Services. See, Sirolli,
Opinion 90 -006; Sharp, Opinion 90- 009 -R.
Section 3(g) specifically prohibits a former public official /public employee from
representing a person, with promised or actual compensation, before the former
governmental body — in this case, the Department of Education — for one year. The
Ethics Law defines the terms "person" and "represent" as follows:
The following words and phrases when used in this
act shall have, unless the context clearly indicates
otherwise, the meanings given to them in this section:
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"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.
65 P.S. §402.
The term "person" includes a former public employee representing himself in
providing consulting services to his former governmental body. Confidential Opinion
93 -005. Furthermore, the Commission has specifically held that Section 3(g) of Act
9 of 1989 prohibits a former public official /public employee from providing consulting
services as an individual to his former Department during the one -year period of
applicability of Section 3(g). Iii In so holding, the Commission stated:
It might be argued that [the] literal wording of Section 3(g) and the
statutory definition of "represent" — "To act on behalf of any other
person . . ." specifically excludes activity by a person on behalf of
himself individually. Under the definitional section of the Ethics Law, it
is provided that words and phrases shall have their stated meaning ".
. unless the context clearly indicates otherwise ...." The context of
Section 3(g) does indicate otherwise since it restricts representation as
to ". . . g person...." which is indicative of a legislative intent to have
Sheehan /Morton, 97 -537
March 7, 1997
Page 5
the term "represent" include such activity on behalf of the former public
official /employee himself. Further, all of the advantages that a former
public official /employee of a governmental body has exists whether he
represents others or himself.
Confidential Opinion, No. 93 -005 at 6; See also, Confidential Opinion, No. 89 -019.
The Commission recognizes that when an individual is a public employee, he is
subject to various controls and oversight that are imposed upon him. However, when
an individual leaves public employment and becomes a former public employee, he is
no longer subject to those controls; his interest lies with his new employer or in the
case of a consultant, with himself. The Commission has determined that Section 3(g)
is specifically designed to prevent a financial advantage to former public
officials /employees who could take advantage of their prior association with the
governmental body: In short, Section 3(g) prohibits public officials /employees from
leaving governmental service and then coming back to capitalize upon their
connections. Confidential Opinion, No. 93 -005 at 5 -6. This is not to suggest that any
improper motivation exists on the part of Morton, who you have indicated is willing
to cut her fee in half to $500 per day, as a favor to the Department. However, the
law must be applied to Morton as it would be applied to anyone else in this situation.
Thus, the necessary conclusion is that Morton, as a former public employee,
may not enter into the proposed short -term Service Purchase Contract with the
Department of Education within the one -year period following termination of her
employment with the Department of Education.
Based upon the above conclusion, your question as to an open and public
process need not be addressed.
In response to your question as to the effect such a contract would have upon
Morton's status, you are advised that for purposes of the Ethics Law, such a short -
term Service Purchase Contract would not cause her to be considered a "public
employee."
The following information is set forth so that Morton will be fully advised as to
the nature of the restrictions that apply to her under Section 3(g).
The Commission, in Popovich, Opinion 89 -005, has 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;
Sheehan /Morton, 97 -537
March 7, 1997
Page 6
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 -011.
Morton may assist in the preparation of any documents presented to the
Department of Education. However, Morton may not be identified on documents
submitted to the Department of Education. Morton may also counsel any person
regarding that person's appearance before the Department of Education. Once again,
however, the activity in this respect should not be revealed to the Department of
Education. Of course, any ban under the Ethics Law would not prohibit or preclude
the making of general informational inquiries of the Department of Education to secure
information which is available to the general public. This must not be done in such a
manner that it would constitute prohibited "representation."
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.
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 her former capacity as Director of the Bureau of Curriculum and
Academic Services with the Department of Education, Amy Mort on (Morton) would
be considered a "public employee" as defined in the Ethics Law. Upon termination of
service with the Department of Education, Morton would become a "former public
employee" subject to Section 3(g) of the Ethics Law. The former governmental body
is the Department of Education in its entirety, including but not limited to the Bureau
of Curriculum and Academic Services. The restrictions as to representation outlined
above must be followed. Morton would specifically be prohibited by Section 3(g) from
entering into a short-term Service Purchase Contract with the Department of Education
within the one -year period following termination of her employment with the
Department of Education. The propriety of the proposed conduct has only been
addressed under the Ethics Law.
Further, the Ethics Law also requires that a Statement of Financial Interests be
filed for the year following termination of service.
Sheeh.n /Morton, 97 -537
March 7, 1997
Page 7
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 §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.
incerely,
Vincent J.'Dopko
Chief Counsel