HomeMy WebLinkAbout99-514 DorschRegis J. Dorsch
Regional Vice President
EMSA Correctional Care
9800A McKnight Road, Ste. 203
Pittsburgh, PA 15237
Dear Mr. Dorsch:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
February 23, 1999
Re: Former Public Employee; Section 1103(g); Superintendent of the State Correctional
Institution at Pittsburgh; Department of Corrections.
This responds to your letter of January 21, 1999 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act presents any
restrictions upon employment of a superintendent of a state correctional institution
following termination of service with the Commonwealth of Pennsylvania, Department of
Corrections.
Facts: You are the Regional Vice President of EMSA Correctional Care ( "EMSA ").
You have been authorized to request an advisory on behalf of James S. Price ( "Price "),
who has been employed as the Superintendent of the State Correctional Institute ( "SCI ")
at Pittsburgh since January, 1997.
EMSA is interested in hiring Price as a Health Service Administrator. You have
submitted a job description for this position, which description is incorporated herein by
reference. You list additional duties of this position as filling in for designated
administrators who are on leave as well as assisting in the training and development of
current and future Health Service Administrators in areas such as security policies and
procedures, and of a security awareness orientation program for medical staff of all levels,
including on -site providers and off -site contracted hospital staff and specialty providers.
You state your belief that Price will provide EMSA with "unique knowledge and skills that
will be beneficial" to both EMSA and the Commonwealth of Pennsylvania Department of
Corrections ( "DOC ").
You state your understanding that "under the PA Code of Ethics, certain employee
classifications must seek an opinion." You state that you do not believe Price would have
a conflict as an employee of EMSA for the following reasons: EMSA is currently under
contract with the DOC, which contract was awarded in October, 1997 by a determination
of the Bureau of Medicine based upon a written proposal, an oral presentation, and
competitive pricing. Price had neither direct nor indirect influence in the awarding of said
contract. Additionally, the contract expires in September, 2003, thus you state that
Price's potential influence in the re- bidding process. is not an immediate concern.
FAX : (717) 787 -0806 • Web Site: www.ethics.state.ba.us • e -mail: sec@state.pa.us
99 -514
Dorsch, 99 -514
February 23, 1999
Page 2
It is assumed that Price would terminate his Commonwealth employment were he
to accept employment with EMSA. It is further assumed that you are requesting an
advisory as to whether Price would have a conflict of interest in being employed by
EMSA, following termination of Commonwealth employment.
Discussion: As Superintendent of SCI at Pittsburgh for the Commonwealth of
Pennsylvania DOC, Price would be considered a "public employee" subject to the Public
Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics
Commission. See, 65 Pa.C.S. 51102; 51 Pa.Code § 1 1.1. The above is based upon the
conclusion that Price as the Superintendent of SCI - Pittsburgh has the power 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, Price would become a "former
public employee" subject to Section 1103(g) of the Ethics Act.
While Section 1103(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 1103. Restricted activities.
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
promised or actual compensation, on any matter before the
aovernmental body with which he has been associated for one
year after he leaves that body.
65 Pa.C.S. §1103(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
Act as follows:
65 Pa.C.S. 51102.
Section 1102. 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.
Dorsch, 99 -514
February 23, 1999
Page 3
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also 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 1103(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 Act 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 1103(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 Price would be associated upon termination of
public service is DOC in its entirety. Therefore, for the first year after termination of
Price's service with DOC, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of "persons" before DOC.
Having set forth all of the above restrictions, it is clear that although the Ethics Act
would not preclude Price from accepting a position of employment with EMSA, it would
restrict his conduct in his new position to the extent that such conduct would constitute
representation before DOC. As a practical matter, it would appear to be impossible for
Price to perform the functions of the proposed position vis -a -vis DOC without
transgressing Section 1103(g).
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1 103(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 1103(a) of
Dorsch, 99 -514
February 23, 1999
Page 4
the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics
Act 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 Act; 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 Act.
Conclusion: As Superintendent of the State Correctional Institution at Pittsburgh
with the Commonwealth of Pennsylvania, Department of Corrections, Price would be
considered a "public employee" as defined in the Public Official and Employee Ethics Act
( "Ethics Act "), 65 Pa.C.S. §1101 a seq. Upon termination of service with the Department
of Corrections, Price would become a "former public employee" subject to Section
1103(g) of the Ethics Act. The former governmental body would be the Department of
Corrections. The restrictions as to representation outlined above must be followed. The
propriety of the proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act 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 1107(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 57 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.
cerely,
Vincent ° Dop o
Chief Counsel