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
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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
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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
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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
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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