HomeMy WebLinkAbout99-597 PetersLeslie K. Peters
Educational Consultant
81 Sunrise Blvd.
Elizabethtown, PA 17022 -1431
Dear Ms. Peters:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
September 1, 1999
FAX: (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: ethics@state.pa.us
99 -597
Re: Former Public employee; Section 1103(g); State Coordinator for the Education
of Homeless Children and Youth Program; Early Childhood Advisor II; Division of
Student and Safe School Services; Department of Education.
This responds to your letter received on August 4, 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 the State Coordinator for the Education
of Homeless Children and Youth Program, classified as an Early Childhood Advisor II,
following termination of service with the Commonwealth of Pennsylvania, Department
of Education.
Facts: You retired on June 30, 1999, from your former position as the State
Coordinator for the Education of Homeless Children and Youth Program, in which
position you were classified as an Early Childhood Advisor II, with the Commonwealth
of Pennsylvania, Department of Education ( "PDE "). Copies of your job description, job
classification specifications, and organizational chart have been obtained from PDE,
together with a cover memorandum dated August 18, 1999 from Jan Pricer, Acting
Chief, Position Management /Labor Relations Division, all of which documents are
incorporated herein by reference.
You seek an advisory regarding doing part -time work through a contract with
the Bucks County Intermediate Unit. You state that you would provide technical
assistance and training for Pennsylvania's Homeless Children's Initiative on an hourly,
as needed basis. Major tasks would include revising and moving key publications and
project activities through the PDE approval process and revising and implementing the
Pennsylvania Learning Doll Project, a special service learning project for parent and
child. Another task would be to train the newly hired PDE employee to take over the
duties of the State Coordinator for the Education of Homeless Children and Youth
Program.
Additional part-time hourly employment contracts could include requests from
community and non - profit agencies seeking awareness workshops to implement a
service learning project such as the Learning Doll Project for Parent and Child.
Peters, 99 -597
September 1, 1999
Page 2
Payment for services rendered would be at an hourly rate, and you would be
reimbursed costs for materials and travel.
Based upon the above, you ask whether your proposed conduct would be
restricted by the Ethics Act.
Discussion: In your former capacity as the State Coordinator for the Education
of Homeless Children and Youth Program for the Commonwealth of Pennsylvania,
Department of Education, 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 § 1 1.1. 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 became 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
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
Peters, 99 -597
September 1, 1999
Page 3
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 Pa.C.S. §1102.
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 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 you have been associated upon termination
of public service is the Department of Education in its entirety. Therefore, for the first
year after termination of your service with the Department of Education, Section
Peters, 99 -597
September 1, 1999
Page 4
1103(g) of the Ethics Act would apply and restrict "representation" of "persons"
before the Department of Education.
With regard to the work for the Bucks County Intermediate Unit specifically, you
are advised that you would be subject to the constraints imposed by Section 1103(g)
as set forth above. See, Ledebur, supra. Thus, you would be prohibited from
representing the Intermediate Unit before PDE, such as by contacting PDE on behalf
of the Intermediate Unit or by having your name appear on documents submitted by
the Intermediate Unit to PDE. Additionally, as a former public employee, you would
transgress Section 1 103(g) if you would be compensated -- either directly by PDE or
through a third party - -for training the PDE employee who is replacing you as the new
State Coordinator for the Education of Homeless Children and Youth Program.
However, so that this advisory is not misunderstood, it is emphasized that Section
1103(g) would not be transgressed where a public employee would train his
replacement prior to leaving the public position, as part of his duties as a public
employee, or where a former public employee would train his replacement without
being compensated for doing so (Section 1103(g) by its own terms only applies where
the representation before the former governmental body is for promised or actual
compensation).
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
1 103(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: In the former capacity as the State Coordinator for the Education
of Homeless Children and Youth Program, classified as an Early Childhood Advisor II,
with the Commonwealth of Pennsylvania, Department of Education, 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, 65 Pa.C.S. §1101 aeg. Upon
termination of service with the Commonwealth of Pennsylvania, Department of
Education, you would become a "former public employee" subject to Section 1 103(g)
of the Ethics Act. The former governmental body is the Department of Education in its
entirety. 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
Peters, 99 -597
September 1, 1999
Page 5
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.
S cerely,
Vincent J. DIApko
Chief Counsel