HomeMy WebLinkAbout97-620 RollasonCharles L. Rollason, Jr.
2103 Circle Road
Carlisle, PA 17103
Dear Mr. Rollason:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 22, 1997
97 -620
Re: Former Public Employee; Section 3(g); Department of Public Welfare, Office of
Children, Youth and Families; Regional Director of Children and Youth Services.
This responds to your letter of September 24, 1997 by 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 Regional Director of Children and Youth Services
following termination of service with the the Department of Public Welfare, Office of
Children, Youth and Families.
Facts: You recently retired as the Regional Director of Children and Youth
Services, Office of Children, Youth and Families in the Department of Public Welfare
(DPW). In that position, you were responsible for the management of the office which
provided state oversight and supervision to all applicable children and youth agencies
and facilities in the central region of the state. Among the agencies which come under
state oversight are county children and youth agencies. You state that the legal basis
for DPW's responsibilities with the counties is Article VII and IX of the Public Welfare
Code which, aside from a number of state and federal statutes which are applicable
in children and youth, defines the responsibilities and relationships between the state
and supervised agencies.
You have been approached about the possibility of providing consultation
services to Cumberland County Children and Youth Agency. Your proposed
consultation would occur under the auspices of AGAPE Associates which is an
affiliation of professional social workers. AGAPE presented a consultation proposal to
Cumberland County Children and Youth in August, 1997, which proposal was recently
accepted by that agency. You submitted a copy of that proposal which is incorporated
herein by reference. Under that proposal, you would provide consultation around
judicial reviews and consultation on managed care. Your total hours of consultation
would average 6 to 8 hours per week.
Rollason, 97 -620
October 22, 1997
Page 2
You request an advisory from this Commission as to whether there is any
prohibition or restrictions under the Ethics Law as to this proposed consulting contract.
Discussion: In the former capacity as the Regional Director of Children and
Youth Services, Office of Children, Youth and Families in DPW, you would be
considered a "public employee" subject to the Public Official and Employee Ethics Law
( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 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 one or more
of the following: 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 became a "former public
employee" subject to Section 3(g) of the Public Official and Employee Ethics Law.
While Section 3(g) does not prohibit a former public official /public employee
from accepting a position of employment, it does restrict the former public
official /public employee with regard to "representing" a "person" before "the
governmental body with which he has been associated ":
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.
65 P.S. §403(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Law 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.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership,
committee, club or other organization or group of persons.
"Governmental body with which a public official or
public employee is or has been associated." The
governmental body within State government or a political
Rollason, 97 -620
October 22, 1997
Page 3
65 P.S. §402.
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.
The term "Person" is very broadly defined. It includes the former public
employee himself, Confidential Opinion 93 -005, as well as a new governmental
employer. Ledebur, Opinion 95-007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (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; and (5) lobbying.
Popovich, Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
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)
also generally prohibits 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 that existed prior to termination
of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract
does not involve 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
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official /public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Law would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to
the general public, but 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.
Section 3(g) only restricts the former public official /public employee with regard
to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public
employee is or has been associated" is not limited to the particular subdivision of the
agency or other governmental body where the public official /employee had influence
or control but extends to the entire body. See, Legislative Journal of House, 1989
Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
Rollason, 97 -620
October 22, 1997
Page 4
The governmental body with which you were associated upon termination of
public service is DPW in its entirety, including but not limited to the Office of Children,
Youth and Families. Therefore, for the first year after termination of your service with
DPW, Section 3(g) of the Ethics Law would apply and restrict "representation" of
"persons" before DPW.
The applicability of Section 3(g) of the Ethics Law to your employment situation
turns upon whether the Cumberland County Children and Youth Agency (Agency) is
part of the County or DPW. If the Agency is not part of DPW, your former
governmental body, then Section 3(g) of the Ethics Law would not restrict your
representation of AGAPE before that Agency. However, if the Agency is part of DPW,
then the restrictions of Section 3(g) noted above would apply and would prohibit your
representation of AGAPE before the Agency as part of DPW.
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 private pecuniary benefit as prohibited by Section 3(a) of
the Ethics Law. Further, 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 judgment 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.
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.
Conclusion: In the former capacity as the Regional Director of Children and
Youth Services, Office of Children, Youth and Families in the Department of Public
Welfare (DPW), you would be considered a "public employee" as defined in the Ethics
Law. Upon termination of service with DPW, you became a "former public employee"
subject to Section 3(g) of the Ethics Law. The former governmental body is DPW in
its entirety, including but not limited to the Office of Children, Youth and Families. 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 would
require that a Statement of Financial Interests be filed by no later than May 1 of the
year after 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.
Rollason, 97 -620
October 22, 1997
Page 5
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, de / /very 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. opko
Chief Counsel