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HomeMy WebLinkAbout99-577 PinciaroRobert Pinciaro 306 Hillcrest Drive New Cumberland, PA 17070 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL July 12, 1999 99 -577 Re: Former Public employee; Section 1103(g); Welfare Program Specialist Supervisor; Bureau of Child Support Enforcement; Department of Public Welfare. Dear Mr. Pinciaro: This responds to your letter of June 9, 1999 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act ") presents any restrictions upon employment of a Welfare Program Specialist Supervisor following termination of service with the Department of Public Welfare. Facts: You are employed as a Welfare Program Specialist Supervisor in the Bureau of Child Support Enforcement (BCSE), Division of Program Development and Evolution (DPDE), Department of Public Welfare (DPW). You achieved your 10 -year vested status with the Commonwealth of Pennsylvania and are considering external career options. Your work is specialized and you are most marketable to private vendors, such as Lockheed Martin, which works in the Title IV -D Program. Lockheed Martin is currently under contract with the Commonwealth of Pennsylvania to implement the State Collection and Disbursement Unit (SCDU). The contract with Lockheed Martin was procured by the OIM, Bureau of Program Support (BPS), and is administered by its Director, Michael L. Coulson. BCSE is under Federal requirements to administer the Title IV -D Program by providing the BPS, Division of Automated Child Support Enforcement System (DACSES) with assessments of system and program requirements that must be implemented by this vendor to conform with Federal and State statutes and regulations. You request advice in identifying any specific ethical responsibilities and prohibitions that you would be required to adhere if you were offered a position with Lockheed Martin in the operation of the SCDU. Discussion: As Welfare Program Specialist Supervisor for Bureau of Child Support Enforcement, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. §1102; 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 FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics @state.pa.us Pinciaro, 99 -577 July 12, 1999 Page 2 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 1 103(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 1 103. 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 governmental 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. §1102. 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. Pinciaro, 99 -577 July 12, 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 -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 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 1 103(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 DPW in its entirety. Therefore, for the first year after termination of you service with DPW, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DPW. As to your possible employment with Lockheed Martin which provides services via a contract with DPW, Section 1103(g) of the Ethics Act would not prohibit you from accepting a position of employment with Lockheed Martin. However, you could not "represent" your new employer before DPW. As a practical matter, if your employment with Lockheed Martin would involve interaction with DPW so as to Pinciaro, 99 -577 July 12, 1999 Page 4 constitute "representation ", then such activities would be prohibited; if such is the case, it would appear to be impossible for you to perform the functions for your new employer on the DPW contract without transgressing Section 1103(g). As the Commission held in Stanisic, Opinion 98 -004: We similarly conclude, as did the Advice of Counsel, that during the first year following termination of your employment with PennDOT, it would be impossible as a practical matter for you to perform the functions of a Construction Inspector working for a consulting firm on PennDOT project(s) without transgressing Section 3(g). In performing inspections of such project(s), you would be acting on behalf of your new employer and would necessarily engage in prohibited representation before your former governmental body, PennDOT. See, Long, Opinion No. 97 -010. lsj._ at 5 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 the Ethics Act. Further, you are advised that Sections 1 103(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 a Welfare Program Specialist Supervisor with Bureau of Child Support Enforcement, Department of Public Welfare (DPW), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with DPW, you would become a "former public employee" subject to Section 1 103(g) of the Ethics Act. The former governmental body would be DPW. 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), an 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, provided 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. Pinciaro, 99 -577 July 12, 1999 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, 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 L) Dopko Chief Counsel