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HomeMy WebLinkAbout97-555 StuffJohn Stuff 44 Homestead Drive Denver, PA 17517 Dear Mr. Stuff: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 15, 1997 Re: Former Public Employee; Section 3(g); Department of Public Welfare; Child Support Enforcement Program Director. 97 -555 This responds to your letter of March 17, 1997 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 Child Support Enforcement Program Director following termination of service with the Department of Public Welfare (DPW). Facts: You have worked in the Department of Public Welfare (DPW) for nearly 30 years and plan to retire on June 27, 1997. For the past 14 years, you have held the position classification of Child Support Enforcement Program Director. You submitted a copy of your classification specification which is incorporated herein by reference. In that capacity, you were responsible for the Commonwealth's child support enforcement program. DPW supervises the program via cooperative agreements (written contracts) with the President Judges of the Courts of Common Pleas and County Commissioners of all 67 counties. You state that it is the Courts of Common Pleas /County Domestic Relations Sections which perform most of the administrative duties of the program. After retirement from State service, you plan to be employed in the Enforcement Division of the Lancaster County Domestic Relations Section. You have submitted a copy of the Job Announcement for that position which is incorporated herein by reference. It is noted that the job title for the position you would be holding is "Assistant Enforcement Supervisor." Your questions involve the restrictions that would be placed upon you with regard to interaction with DPW staff after you retire. Specifically, you inquire as to the following: 1. Whether the enclosure to Management Directive 205.12 Amended (a copy of which you provided) prohibits you from talking with DPW staff on individual child support case activities? You state that, for example, as an enforcement officer, you may need to call DPW staff and ask for a motor vehicle search over Stuff, 97 -555 April 15, 1997 Page 2 the phone, or for the mailing address of another state's child support agency, or for a credit bureau check on a delinquent defendant. 2. Whether the aforesaid enclosure prohibits you from serving on the Board of Directors of the Domestic Relations Association of Pennsylvania (DRAP)? DRAP is a non - profit organization with over 1,000 federal, Commonwealth, and County government employees as well as private individuals involved in the child support career field. In addition to child support training, DRAP also takes positions on proposed State legislation, issues public service announcements, and lobbies the Commonwealth to adopt policy and procedures that would be favorable to county governments. 3. Having been approached by several private contractors interested in your child support experience, you ask whether you would be forbidden to work for a private contractor in Pennsylvania if your contacts would be limited to county governments and you would have no direct interaction with DPW (For purposes of this Advice, it is assumed that this sort of work would be an alternative to the position with the Lancaster County Domestic Relations Section, and that you would not be doing both simultaneously). Discussion: As Child Support Enforcement Program Director for the Department of Public Welfare (DPW), you are 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. 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, 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 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. Stuff, 97 -555 April 15, 1997 Page 3 "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 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 have been associated upon termination of public service would be DPW in its entirety, including but not limited to the Child Support Enforcement Program. 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. 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 Stuff, 97 -555 April 15, 1997 Page 4 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. 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. 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 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 Stuff, 97 -555 April 15, 1997 Page 5 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 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. Having set forth the above restrictions and•.precedents, your specific inquiries shall now be addressed. In response to your first specific inquiry, in light of the Commission's Opinion in Ledebur, supra, the new governmental employer would be a "person" and the Section 3(g) restrictions would apply to prohibit you from representing your new governmental employer before your former governmental body, DPW. However, as noted above, you would not be prohibited from instructing others as to handling these contacts with DPW. In response to your second specific inquiry, Section 3(g) would not operate to restrict you as a former public official /public employee from serving on the Board of Directors of DRAP. However, you will note that the definition of "person" set forth above specifically includes associations, such that the restrictions of Section 3(g) would likewise apply to restrict representation of DRAP before your former governmental body, DPW. Given that your status would be as a Director of that Association, it could be problematic for you to insure that not only would you avoid contact with DPW, but that your name would not appear on documents submitted to DPW. In response to your third specific inquiry, as noted above, the restrictions of Section 3(g) apply only to restrict you as to your former governmental body, DPW. Contacts with County governments as opposed to DPW would not implicate Section 3(g). Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(g) only. It is expressly assumed that there has been no use of authority of office for a prohibited private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Finally, you are advised that 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 Stuff, 97 -555 April 15, 1997 Page 6 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. 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 Child Support Enforcement Program Director for the Department of Public Welfare (DPW), you are a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body would be DPW in its entirety, including but not limited to the Child Support Enforcement Program. 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 with DPW for the year following termination of service. This requiremertt would be in addition to any filing requirement for a future position. 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. Sincer1ely, 464 Vincent . Dopko Chief Counsel