HomeMy WebLinkAbout99-586 FieneRichard Fiene, Ph.D
Office of Policy Development
Room 323, Health & Welfare Building
PO Box 2675
Harrisburg, PA 17105 -2675
Dear Mr. Fiene:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
August 2, 1999
99 -586
Re: Former Public Employee; Section 1 103(g); Program Analyst; Department of Public
Welfare.
This responds to your letter of July 1, 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 program analyst following termination of service with
the Department of Public Welfare.
Facts: In February, 2000, you plan to retire from your position as program analyst
(research psychologist) within the Department of Public Welfare (DPW) after 25 years of
employment with the Commonwealth. You have also been employed part -time as an
affiliate assistant professor of psychology at Pennsylvania State University (PSU),
Harrisburg for the past 23 years, having received the necessary approvals related to such
supplementary employment.
You are being considered for a full -time position at PSU in which you would
coordinate their community psychology graduate program, direct the Center for
Community Action and Research and become a research associate for the Capital Area
Early Childhood Training Institute.
In the summer of 1998, the Greater Harrisburg Foundation (GHF) approached you
and a PSU faculty member about developing a training institute for high quality infant care
giver training for the capital region. You did not receive any compensation for such work.
You developed a plan for the Capital Area Early Childhood Training Institute for Infancy
(Institute) that GHF approved in May 1999. The infrastructure of the Institute will be
totally private foundation funds; however, the GHF is in the process of applying for DPW
cfiild care training and program quality funds to support the training component of the
Institute. The GHF has tentative plans to subcontract with PSU in the implementation of
the Institute. Because of your expertise in the early childhood area, PSU is interested in
offering you the position of Research Associate with the Institute. All of the funding for
your position as a Research Associate with PSU vis -a -vis the Institute would come from
the GHF's private funds and none from the DPW child care training and program quality
funds. The remaining portion of your PSU salary to coordinate the community psychology
graduate program and to direct the Center for Community Action and Research would be
from a non - tenured track faculty line. You have informed PSU that for one year you
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
Fiene, 99 -586
August 2, 1999
Page 2
cannot represent the University on any DPW contracts, therefore, you state that you will
have no contact with any DPW employees for a one year period after you leave
Commonwealth employment.
You request advice as to whether you would be within the requirements of the
Ethics Act if you were to accept the PSU position.
Discussion: As Program Analyst for Department of Public Welfare, 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 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 1 103(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
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:
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
Fiene, 99 -586
August 2, 1999
Page 3
65 Pa.C.S. §1102.
or has been appointed or elected and subdivisions and offices
within that governmental body.
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 1 :
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,
minion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service would be the Department of Public Welfare in its entirety. Therefore, for the
first year after termination of you service with the Department of Public Welfare, Section
1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before
the Department of Public Welfare.
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
Fiene, 99 -586
August 2, 1999
Page 4
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 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 a Program Analyst with the Department of Public Welfare, 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 Department
of Public Welfare, you would become a "former public Employee" subject to Section
1 103(g) of the Ethics Act. The former governmental body would be the Department of
Public Welfare. 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.
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.
r
Vincent opko
Chief Counsel