HomeMy WebLinkAbout00-596 HummelRoger G. Hummel
510 Eighth Street
New Cumberland, PA 17070
Dear Mr. Hummel:
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 28, 2000
FAX: (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: ethics@state.pa.us
00 -596
Re: Former Public Employee; Section 1103(g); Chief; Division of Data Services;
Department of Education.
This responds to your letter of June 28, 2000, 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 Chief, Division of Data Services following
termination of service with the Department of Education.
Facts: Prior to your retirement on March 24, 2000, you served for 22 years as
Chief, Division of Data Services for the Department of Education. You have submitted a
copy of your job description, which is incorporated herein by reference. Currently, you
are being considered as a candidate for a part-time position with an education - related
organization ( "Organization "). The Organization is approved for inclusion on all
categories of the Invitation to Qualify ( "ITQ ") process managed by the Department of
General Services. The Organization is interested in making contacts with State agencies
to promote its expertise and solicit potential contracts.
You state that in your new position, you would be responsible for making contacts
with State agencies. However, you state that you would not be making any contacts
within the Department of Education.
You request an advisory regarding the restrictions that affect your proposed future
employment with the Organization.
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.
In the former capacity as Chief, Division of Data Services for Department of
Education, you would be considered a "public employee" subject to the Ethics Act and
Hummel, 00 -596
July 28, 2000
Page 2
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 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 ":
§ 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 Tor
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 employee is or has been associated" are specifically defined in the Ethics Act
as follows:
§ 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 overnment 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.
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.
Hummel, 00 -596
July 28, 2000
Page 3
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 govemmental 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 ublic
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() 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 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service is the Department of Education in its entirety. Therefore, for the first year
after termination of service with Department of Education, Section 1103(g) of the Ethics
Act would apply and restrict "representation" of "persons" before the Department of
Education.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that although the Ethics Act would not preclude you from accepting employment
with the Organization, it would restrict your conduct in your new position to the extent that
such conduct would constitute representation before the Department of Education. The
submitted facts indicate that in your new position, you would be making contacts with
State agencies other than the Department of Education. Assuming your activities would
not involve prohibited "representation" before the Department of Education as outlined
above, as for example, soliciting a contract for services which would be provided to both
the Department of Education and another State agency, Section 1103(g) of the Ethics Act
would not prohibit such activity.
Hummel, 00 -596
July 28, 2000
Page 4
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1103(9) 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 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 judgement 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 Chief, Division of Data Services for the
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. Upon
termination of service with the Department of Education, you became a "former public
employee" subject to Section 1103(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 truthfully all
the material facts and committed the acts complaint of in reliance on the Advice given.
The 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.
erely,
Sin
Vincent . opko
Chief Counsel