HomeMy WebLinkAbout00-570-C DudickJoseph Dudick, Jr.
260 Edward Street
Harrisburg, PA 17110
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 5, 2000
Re: Former Public Official /Employee; Section 1103(g); Executive Director; Pennsylvania
Rural Development Council; Former Governmental Body; Governor's Office;
Governor's Executive Offices; Consultant; Pennsylvania Council on the Arts.
Dear Mr. Dudick:
This responds to your letter dated May 26, 2000, by which you requested
clarification of Dudick, Advice 00 -570.
Issue: Whether the restrictions of Section 1103(g) of the Public Official and
E m oyee Ethics Act ( "Ethics Act ") would apply to restrict the former Executive Director of
the Pennsylvania Rural Development Council as to representation before the Governor's
Executive Offices and /or the immediate Office of the Governor.
Facts: You initially sought an advisory from the State Ethics Commission by letter
dated March 24, 2000. Your request pertained to the restrictions that the Ethics Act would
impose upon you following termination of your service as the Executive Director of the
Pennsylvania Rural Development Council (' PRDC "). In response to your request, Dudick,
Advice No. 00 -570 was issued to you on April 25, 2000. The Advice of Counsel set forth
the restrictions of Section 1103(g) of the Ethics Act which would apply to you as a "former
public employee" and identified your former governmental body as the Governor's Office,
including the PRDC. Dudick, Advice 00 -570 at 2 -4.
You now seek clarification regarding the identity of your former governmental body.
You ask whether in your situation the term Governor's Office" refers only to the immediate
Office of the Governor, including the Governor's Press Office, the Governor's Policy Office,
the Governor's Legislative Office and such other offices associated with the operation of
the immediate Office of the Governor, or instead refers to all of the agencies which are
included for the purpose of administrative convenience under the "Governor's Executive
Offices," such as the Pennsylvania Council on the Arts.
You state that you are currently interested in entering into an agreement with the
Pennsylvania Council on the Arts to assist it in developing and administering a training and
technical assistance program for boards of directors of rural non - profit organizations. You
would be responsible for helping to design, administer, and participate in the program and
to help seek supplemental non -state funding for the program. You ask whether such
activity would be permitted under the restrictions outlined in Dudick, Advice 00 -570.
FAX: (717) 787 -0806 • Web Site: www.ethics.state_pa.us • e -mail: ethics@state.pa.us
00 -570 -C
Dudick 00 -570 -C
July 5, 2000
Page 2
In addition to the facts which you have submitted, it is administratively noted that the
PRDC was created by Executive Order 1999 -2. The Executive Order provides in pertinent
part: "... 1, Thomas J. Ridge, Governor of the Commonwealth of Pennsylvania ... do
hereby formally create within the Governor's Executive Offices, the Pennsylvania
Rural Development Council ...." Executive Order 1999 -2 at 1 (Some emphasis added).
The Pennsylvania Council on the Arts was created by statute:
There is hereby created in the State of Pennsylvania, the Commonwealth
of Pennsylvania Council on the Arts. The council shall be responsible
directly to the Governor. The council shall consist of fifteen members who
shall be appointed by the Governor by and with the advice and consent of
two- thirds of all the members of the Senate. The members of the council
shall be broadly representative of all fields of the performing and visual arts
and shall be appointed from among private citizens who are widely known for
their competence and experience in connection with the performing and
visual arts.
71 P.S. §1530.1.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of
the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the requestor based
upon the facts which the requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not engage in an
independent investigation of the facts, nor does it speculate as to facts which have not
been submitted. It is the burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An advisory only affords a
defense to the extent the requestor has truthfully disclosed all of the material facts.
As noted in Dudick, Advice No. 00 -570, upon termination of service with the PRDC,
you became a "former public employee" subject to the restrictions of Section 1103(g) of the
Ethics Act. The restrictions of Section 1103(g) as set forth in Dudick, Advice No. 00 -570
are incorporated herein by reference.
In response to your request for clarification as to the identity of your former
governmental body, you are advised that your former governmental body would be the
Governor's Executive Offices, including but not limited to the PRDC. This conclusion is
based upon the fact that the PRDC was expressly created within the Governor's Executive
Offices by Executive Order 1999 -2. Therefore, for the one -year period following termination
of your employment with the PRDC, Section 1103(g) of the Ethics Act would prohibit you
from representing "persons" before the Governor's Executive Offices, including but not
limited to the PRDC.
However, your former governmental body would not include the immediate Office of
the Governor, and therefore, the restrictions of Section 1103(g) would not apply to restrict
you as to representation before, for example, the Governor's Policy Office.
Turning to your specific inquiry involving the Pennsylvania Council on the Arts, you .
are advised that during the one -year period of applicability of Section 1103(g), you would
be prohibited from entering into an agreement with the Pennsylvania Council on the Arts to
provide services for compensation. The Pennsylvania Council on the Arts is part of your
former governmental body, the Governor's Executive Offices. Section 1103() of the
Ethics Act precludes a former public employee from entering into a contract with his former
Dudick 00 -570 -C
July 5, 2000
Page 3
governmental body within one year of termination of service to provide services for
compensation. See, Confidential Opinion, 93 -005; Confidential Opinion, 97 -007;
Confidential Opinion, 97 -008.
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
of the Ethics Acts p fi
ecally not addressed herein is applicability Act has not been considered in that
in the
interpretation of the
in
Governor's Code of Conduct.
Conclusion: As Executive Director of the Pennsylvania Rural Development Council,
you would be considered a "public employee" subject to the Public Official and Employee
Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Upon termination of service with the
Pennsylvania Rural Development Council ( "PRDC "), you became a "former public
employee" subject to Section 1103(g) of the Ethics Act. Your former governmental body is
the Governor's Executive Offices, including but not limited to the Pennsylvania Rural
Development Council and the Pennsylvania Council on the Arts. Your former
governmental body does not include the immediate Office of the Governor. During the
one -year period of applicability of Section 1103(g), you would be prohibited from entering
into an agreement with the Pennsylvania Council on the Arts to provide services for
compensation. The Pennsylvania Council on the Arts is part of your former governmental
body, the Governor's eerved. The propriety of the proposed conduct has only been of
Act must addressed
under the Ethics Act.
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
ursuant to 51 Pa. Code §13.2(). The appeal may be receiv ice
sd
C ommission 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 c :rely,
* .l4d
Vincent J. Do) ko
Chief Counsel