Loading...
HomeMy WebLinkAbout98-542 RugerAlmeda P. Ruger, CFCS, CRT Pennsylvania College of Optometry Feinbloom Vision Rehabilitation Center 1200 W. Godrey Ave. Philadelphia, PA 19141 -3399 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 10, 1998 98 -542 Re: Former Public Employee; Section 3(g); Rehabilitation Teacher; Department of Public. Welfare (DPW); Bureau of Blindness and Visual Services (BVS); Low Vision Therapist /Rehabilitation Instructor; William Feinbloom Vision Rehabilitation Center. Dear Ms. Ruger: This responds to your letter of March 9, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any restrictions upon employment of a certified rehabilitation teacher following termination of service with the Department of Public Welfare, Bureau of Blindness and Visual Services. Facts: - From January 12, 1994 through October 31, 1997, you were employed by the Department of Public Welfare (DPW), in the Philadelphia office of the Pennsylvania Bureau of Blindness and Visual Services (BVS), as a certified "rehabilitation teacher" of the blind and visually impaired. As a "rehabilitation teacher" for the State, you saw clients in their homes and focused solely on their ability to perform daily living activities, such as cooking, cleaning, and self -care. On November 3, 1997 you began your current position as a "low vision therapist," also known as a "rehabilitation instructor," with the William Feinbloom Vision Rehabilitation Center of the Pennsylvania College of Optometry (Feinbloom Center) and, as such, you teach patients in the Center how to use low vision devices, such as magnifiers, reading glasses, and electronic magnification systems, and you assist patients in using their vision more effectively through non - optical devices, such as reading stands, lighting filters, and sun lenses. You hold masters' degrees in both Rehabilitation Teaching and Vision Rehabilitation, which you assert are separate disciplines. Although in your current position you function as a "low vision therapist," you state that you were not allowed to function as such while employed by the State and that the staff was never aware of your ability to function in this capacity. Ruger, 98 -542 April 10, 1998 Page 2 Additionally, in your current position with the Feinbloom Center, you often recommend that supervising doctors refer patients to your former employer, the BVS, for rehabilitation teaching because you feel that the Feinbloom Center does not have the resources to do it properly. You also state that the Feinbloom Center and BVS are "allied agencies" and that your present supervisor as well as the Director of BVS are aware of your situation. Noting that there has been some question about a conflict of interest related to you, you specifically request a "statement of clearance" from the State Ethics Commission. Copies of your most recent job description and job classification specifications were obtained from DPW, which documents are incorporated herein by reference. It is notes that according to your job description, your duties at DPW /BVS included formulating individualized plans or instructions with client participation by developing service objectives and course content, selecting equipment, and projecting the time for completion of instruction. You also accounted for the inventory of teaching equipment and supplies in order to keep a current listing of items to be purchased. According to the job classification specifications for your former position, you had the authority to assess individual client problems and needs, develop individualized plans of instruction for each client to be served, and make recommendations based upon the client's need regarding procuring adaptive aids and appliances. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that pursuant to the same aforesaid Sections of the Ethics Law, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. In this case, any question as to "conflict of interest" would necessarily involve past conduct. This is because under the Ethics Law, a conflict of interest involves the use of the authority of the public position or confidential information obtained by being in such position for a prohibited private pecuniary benefit (See, 65 P.S. §§402, 403(a)), such as for example, a new employment opportunity. Since you no longer work for DPW but rather, work for the Feinbloom Center, any question as to conflict of interest would necessarily involve past conduct, and therefore could not be addressed within the scope of this advisory. Morever, there is no such thing as a "statement of clearance" issued by the State Ethics Commission. However, based upon your job description and the job classification specifications for your former position with DPW, it appears that you would be considered a "former public employee" such that your future conduct would be subject to Section 3(g) of the Ethics Law. It appears that a person in your prior position would have discretionary authority, pursuant to the job description and /or the job classification specifications, to select services /equipment from among various vendors, Ruger, 98 -542 April 10, 1998 Page 3 and that therefore, you would be considered a "public employee" in your former position (See, Rinehart- Pasda, Opinion No. 92 -006; see also, Schmidt, Opinion No. 93- 008) and a "former public employee" now. This advisory assumes that you are such. Therefore the restrictions of Section 3(g) shall be set forth below in order to provide a complete response to your inquiry. Although 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: 65 P.S. §402. 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 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 Ruger, 98 -542 April 10, 1998 Page 4 of the former public official /public 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 -01 1. 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 /public 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. The governmental body with which you have been associated upon termination of public service is the Department of Public Welfare (DPW) in its entirety, including but not limited to the Bureau of Blindness and Visual Services (BVS). 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 in its entirety, including but not limited to BVS. 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 /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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 Ruger, 98 -542 April 10, 1998 Page 5 code of conduct other than the Ethics Law 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: Based upon the assumption that in the former capacity as a certified rehabilitation teacher for the Department of Public Welfare (DPW), Bureau of Blindness and Visual Services (BVS), 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 BVS. 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. 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. Sj ere Vincent J. Dopko Chief Counsel