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HomeMy WebLinkAbout94-002 ConfidentialI. ISSUE: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Daneen E. Reese, Vice Chair Roy W. Wilt Austin M. Lee Allan M. Kluger Joseph W. Marshall, III DATE DECIDED: 04/29/94 DATE MAILED: 05/04/94 94 -002 Re: Public Employee, Former Public Employee; Section 3(g); D, Statewide C Management System Coordinator, Department A, Appeal of Advice. This confidential Opinion is issued pursuant to the appeal of confidential Advice of Counsel, No. 94 -509 issued on February 10, 1994 Whether any restrictions or prohibitions are imposed by the Public Official and Employee Ethics Law upon a D in Department A following termination of service. II. FACTUAL BASIS FOR DETERMINATION: On February 25, 1994, this Commission received your FAX transmission wherein you appealed the above Advice. The appeal of advice did not delineate the nature of your objection to the Advice of Counsel other than to indicate the exercise of your right to appeal. By letter dated April 5, 1994 you were notified of the date, time and location of the public meeting. In your original request you inquired about the prohibitions or restrictions that may apply to you under the Ethics Law if you terminate your employment with Department A and begin working for a new employer that transacts business with Department A. Presently, you are employed in Bureau B, C Division with duties of coordinating statewide C Management System, manipulating management Confidential Opinion, 94 -002 May 4, 1994 Page 2 system data through department programs for specific presentation requests, supervising six technical C inspection operators and reviewing C design plans. You would be performing C inspections and designs for existing Department A contracts and other entity contracts in your new employment. You have performed C quality assurance inspection and assisted in design reviews but have not participated in such duties for over 10 months. It is not anticipated that you would have any direct contact or interaction with department personnel or agents in your new employment. Your job description reflects the following duties and responsibilities: supervises the entire C safety inspection crane operation, including operators, their expense records, time sheets, leave requests and performance ratings; develops and maintains department C inspection crane scheduling and prepares utilization reports; coordinates G statewide data base, training, coding and system problems, passwords, system availability beyond normal working hours, daily activity.reports, checks structure eligibility for E funds, performs G maintenance enhancements, modifications, testing and training of district personnel, insures integration issues with other systems are addressed for all modifications; provides field liaison for quality assurance activities related to G C safety inspection technical information collection and recording, provides quality assurance testing of G data base, provides Q &A for crane development; does field quality assurance of district C safety inspection teams and reviews in field team practices to maintain uniformity statewide in recording of inspection findings, assists supervisor in Q &A efforts; reviews C inventory- inspection coded information for technical accuracy including local C inventory and inspection data, and coordinates activity with F; enters data into G for C owned by other agencies; executes engineering computer programs on console, executes Mark IV programs and advises districts on the use of Mark IV programs developed by C management systems division and advises district on problems with Mark IV programs; prepares C report statistics and network summary lists and maintains the data to comply with department and E requests; performs necessary engineering and load capacity calculations, assists in reviewing district load posting requests for executive approval; and provides engineering support to other functions within the department and performs other related work as directed. • III. DISCUSSION: We must determine whether an employee in the position of D is a public employee subject to the provisions of the Ethics Law. Initially, we note the following definition of the term Confidential Opinion, 94 -002 May 4, 1994 Page 3 "public employee" under Act 9 of 1989 and under the current Regulations in 51 Pa. Code S11.1. Act 9 of 1989 - "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de mininiis nature on the interests on any person. "Public employee "` shall not include individuals who are employed by the State or any political subdivision thereon in teaching as distinguished from administrative duties. 65 P.S. S402. The Regulation - Public employee -- (i) The term includes an individual who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial nature with regard to one or more of the following: (A) Contracting or procurement. (B) Administering or monitoring grants or subsidies. (C) Planning or zoning. Confidential Opinion, 94 -002 May 4, 1994 Page 4 (D) Inspecting, licensing, regulating or auditing a person. (E) Other activities in which the official action has greater than a de minimis economic impact. (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employee ": (A) The individual normally performs his responsibility in the field without on site supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without on site supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommendations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (I) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Confidential Opinion, 94 -002 May 4, 1994 Page 5 Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employees: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employees: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court Confidential Opinion, 94 -002 May 4, 1994 Page 6 reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code S11.1. In applying the Ethics Law and Regulations to the instant job description and classification /specification, we must apply the principles espoused by Commonwealth Court in Phillips v. SEC, 79 Pa. Commonwealth Ct. 491, 470 A.2d 659 (1984). The Court opined that in determining whether an individual is a public employee under the Ethics Law, there is a broad application for determining coverage, and a strict construction as to limiting any exclusions to the foregoing definition: The Ethics Act, being remedial legislation, is to be liberally construed. See, Kremer v. State Ethics Commission, 56 Pa. Commonwealth Ct. 160, 424 A.2d 968 (1981). Thus coverage under the Act should be broadly, rather than narrowly, determined; conversely, exclusions under the Act should be narrowly, rather than broadly, determined. Id. at 496. In addition, the Commonwealth Court upheld the use by this Commission of applying an objective test to determine whether an individual fits within the statutory definition of public employee, that is, the controlling element is the duties and responsibilities as specified in the classification specification and /or job description rather than the specific duties or variations thereof which any particular employee in a given class would or would not perform: The Commission applied this definition to the duties and responsibilities of the petitioner's job as set forth in the class specifications of a CSA I and his job description which were admitted into the record rather than to his actual duties as a CSA I as he represented them in his testimony. This Court has utilized such an analogous question in Gahres v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 114, 433 A.2d 152 (1981) and this approach has been accepted in federal court cases where an employee, discharged for Confidential Opinion, 94 -002 May 4, 1994 Page 7 Id. at 494 political reasons, contends that his constitutional rights have been violated under the standard erected in Elrod v. Burns, 427 U.S. 347 (1976). Accordingly, we find no error in the Commission's use of an objective test. In applying the Ethics Law, the Regulations and judicial precedent to the position of D, it is clear that an individual in this position is a public employee subject to the filing requirements and provisions of the Ethics Law. In particular, those aspects of your duties which involve inspection and supervision meet the criteria of subsections (4) and (5) of the definition of public employee. As to the regulations, you of course meet the criteria of (i)(D) and (E) as noted above and also (ii)(A),(F),(G) and (H) at a minimum. You are a public employee under the Ethics Law in your position of D. Upon termination of public service, you would become a former public employee subject to the restrictions of Section 3(g) of the Ethics Law, which provides: Section 3. Restricted activities (g) 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 P.S. 5403(g). The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions "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 Confidential Opinion, 94 -002 May 4, 1994 Page 8 that governmental body. We adopt and incorporate the Section 3(g) restrictions set forth in Advice of Counsel 94 -509 as embodying the parameters set forth in the Ethics Law and the opinions of the Commission. We will however highlight some of the more important aspects of the restrictions of Section 3(g) as follows. It was the specific intent of the General Assembly to define the term "governmental body with which a public official or public employee is or has been associated" so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. In applying the above definition to the instant matter, the governmental body with which you were associated upon termination of public service would be Department A, which would specifically include all bureaus and divisions within Department A. Hence, within the first year after termination of your public service, Section 3(g) of the Ethics Law would apply and restrict representation of persons, which would include but not be limited to your new employer, vis -a -vis Department A. As to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. There is no general limitation under Section 3(g) on the type of employment in which a person may engage following departure from his governmental body. The conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, he should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association Confidential Opinion, 94 -002 May 4, 1994 Page 9 with his former governmental body. We have held that representing a person encompasses the former public official /employee representing himself. See Confidential Opinion 93 -005. In Popovich, Opinion 89 -005, we have also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of a bid or contract proposals which are signed by or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, such type of activity outlined above is prohibited by Section 3(g) of the Ethics Law. You may assist in the preparation of any documents presented to your former governmental body so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before your former governmental body but the activity in this respect should not be revealed to your former governmental body. Any ban under the Ethics Law would not prohibit or preclude the making of general information inquiries to secure information which is available to the general public. 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. Therefore, you are a public employee and would be restricted from representing a person before your former governmental body, Department A, for a period of one year after termination of Confidential Opinion, 94 -002 May 4, 1994 Page 10 service. Advice 94 -509 is affirmed and the appeal is dismissed. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: A D in Department A is a public official employee subject to the Ethics Law. Upon termination of service, the former public employee would be restricted for a period of one year after termination of service from representing a person before his former governmental body which would be Department A in its entirety. The advice is affirmed and the appeal is dismissed. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, 4 aau8 Daneen E. Reese Vice Chair