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HomeMy WebLinkAbout98-574 ConfidentialSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 8, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec@state.pa.us 98 -574 Re: Confidential Advice; Former Public Employee; Section 3(g); Deputy Director; County A; Department B; Program C; Termination of Employment. This responds to your letter of June 2, 1998 by which you requested confidential advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a deputy director of a county department B program C, following termination of service. Facts: You are currently employed as a Deputy Director of the County A ( "County ") Department B Program C ( "Program "), a position you have held since 1989. Your job classification is Administrative Officer III. You have included two organizational charts, a memo of the Director of the Program from 1997 regarding departmental reorganization, and a job description, all of which are incorporated herein by reference. You have also been a member of the H Borough Zoning Hearing Board since 1993. You began your employment in the County in 1977 as a caseworker for D Services. You were then employed by the Program in 1981. Positions you have held with that department include: E. You have supervised the following functions: F. You provide an overview of changes which have taken place in your County responsibilities. In January 1996, due to a change in County leadership, a new acting Director was appointed to the Program and your previous work responsibilities were assigned to a lower level person, essentially leaving you with nothing to do. Following a period in which a series of temporary Interim Directors were appointed, you resumed your former (and current) position, with the exception that your duties became ministerial rather than policy- making, requiring you to clear all activities with your supervisor, the Acting Program Director. In January 1997, Mr. I, the Director of the County D Services, was appointed as Director of the County Department B ( "Department ") and became the Acting Program Director. He began to reorganize the former Department programs and, as of November 1997, you have reported to Mr. J, the Manager of K Services. You have maintained your former job responsibilities for the Project but the reorganization is not complete and you are currently much lower in the organization. Your position was not included in the newest Table of Organization and, although you have been told there will be a place in Confidential, 98 -574 July 8, 1998 Page 2 the new structure for you, you have not been told what it is, to whom you will report, or what your job responsibilities will be. There are currently five program offices. At the request of administrators for the offices of G, your department is responsible for preparing new contracts and /or modifying existing contracts based on the needs of clients or service providers who, in conjunction with the Department Director, determine the amounts of funds the 130 Program providers will receive. Your department then prepares the paperwork for the County Commissioners, who must approve all contracts and /or contract modifications through open meetings. The contracts and /or contract modifications are then issued to the service providers. As the contracts are received back in your department, each one is reviewed to identify changes in production and /or cost. When the changes are approved by the program offices and executed by the Commissioners and the County Controller's Offices, the financial section can request payments based on the new awards. In addition, due to difficulties in recruiting qualified candidates, consultants are hired to perform these tasks. Two organizations act as recruitment agents and employers for more than half the staff in the Program. You are responsible for servicing these consulting contracts as well as the "regular" personnel. However, any negotiation of the consulting contracts is under the direction of the various Directors and the Manager of Administration. You are considering leaving public employment for one of the following: 1) employment in an administrative capacity by an existing service provider which subcontracts with the County Department B; 2) employment by a new corporation of an existing contractor to provide an entirely new service for clients in the County; or 3) employment by a provider which currently has no contract with the County but which could be implementing or monitoring M. You ask for an advisory from the State Ethics Commission as to any conflicts of interest which could arise should you accept employment in one of the above - mentioned areas. Discussion: As Deputy Director of the County A ( "County ") Department B Program C, 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 your deputy status (Weinert, Opinion 96 -002) and job description, which when reviewed on an objective basis, indicate 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 would become 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, Confidential, 98 -574 July 8, 1998 Page 3 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 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. 65 P.S. §402. 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 /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 -011. Confidential, 98 -574 July 8, 1998 Page 4 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 would be associated upon termination of public service would be County A in its entirety, including but not limited to the County A Department B Program C. Therefore, for the first year after termination of your service with County A, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before County A. As noted above, Section 3(g) of the Ethics Law does not restrict your employment following termination of service. However, to the extent that you would be engaged in activities which would constitute representation on behalf of a new employer before your former governmental body, such conduct would be prohibited by Section 3(g) of the Ethics Law. Such prohibition would apply to any representation, regardless of whether your employer would be an existing service provider or a new corporation of an existing provider. The restriction would not apply to a provider as long as there is no current contract or interaction with your former governmental body within one year of termination of service. 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 code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As Deputy Director of the County A ( "County ") Department B Program C, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with County A, you would become a "former public Confidential, 98 -574 July 8, 1998 Page 5 employee" subject to Section 3(g) of the Ethics Law. The former governmental body would be County A. 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. Si i cerely, incent . ►pop Chief Counsel