HomeMy WebLinkAbout95-007 LedeburDear Mr. Ledebur:
I. ISSUES:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
OPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Austin M. Lee, Vice Chair
Roy W. Wilt
Allan M. Kluger
John R. Showers
Rev. Joseph G. Quinn
Boyd E. Wolff
DATE DECIDED: 08/04/95
DATE MAILED: 08/14/95
Gary W. Ledebur
Director
Family Resource Networks
The School District of Philadelphia
Office of Schools
Room 705, Administration Building
Parkway at 21st Street
Philadelphia, PA 19103 -1099
95 -007
Re: Conflict, Public Official /Employee, School District, Director,
Family Resource Networks; Former Public Employee, Department
of Education, Bureau of Community and Student Services,
Person, Governmental Body.
This Opinion is issued in response to your letters of April 5
and May 1, 1995, in which you request guidance from the State
Ethics Commission.
Whether the Public Official and Employee Ethics Law imposes
any restrictions or prohibition upon the director of family
resource networks of a school district for a period of one year
following his termination of service as a bureau director in the
Pennsylvania Department of Education.
Ledebur, Gary W., 95 -007
Page 2
II. FACTUAL BASIS FOR DETERMINATION:
From 1984 to April 3, 1995, you were employed as Director of
the Bureau of Community and Student Services, which was formerly
the Bureau of Basic Education Support Services, for the
Pennsylvania Department of Education. On April 3, 1995, you began
employment as Director of Family Resource Networks for the City of
Philadelphia School District. You seek guidance from this
Commission as to whether the Ethics Law is applicable to you in
your new position, and if so, the restrictions that are applicable
to you.
III. DISCUSSION:
It is initially noted that pursuant to Sections 7(10) and
7(11) of the Ethics Law, 65 P.S. § §407(10), (11), opinions are
issued to the requestor based upon the facts which the requestor
has submitted. In issuing an opinion based upon the facts which
the requestor has submitted, we do not engage in an independent
investigation of the facts, nor do we 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 P.S. § §407(10), (11). An opinion only affords a
defense to the extent the requestor has truthfully disclosed all of
the material facts.
As the Director of Family Resource Networks for the City of
Philadelphia School District, you are a public employee as that
term is defined under the Ethics Law, and hence you are subject to
the provisions of that law. This conclusion is based upon your 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 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.. 65 P.S. §402; 51 Pa. Code §11.1.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The phrase "conflict or conflict of interest" is defined in
the Ethics Law as follows:
Ledebur, Gary W., 95 -007
Page 3
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
In addition, Sections 3(b) and 3(c) of the Ethics Law provide
in part that no person shall offer to a public official /employee
anything of monetary value and no public official /employee shall
solicit or accept anything of monetary value based upon the
understanding that the vote, official action, or judgment of the
public official /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.
Section 3(j) of the Ethics Law provides as follows:
Section 3. Restricted activities
(j) Where voting conflicts are not
otherwise addressed by the Constitution of
Pennsylvania or by any law, rule, regulation,
order or ordinance, the following procedure
shall be employed. Any public official or
public employee who in the discharge of his
official duties would be required to vote on a
matter that would result in a conflict of
interest shall abstain from voting and, prior
to the vote being taken, publicly announce and
disclose the nature of his interest, as a
public record in a written memorandum filed
with the person responsible for recording the
minutes of the meeting at which the vote is
taken, provided that whenever a governing body
would be unable to take any action on a matter
Ledebur, Gary W., 95 -007
Page 4
before it because the number of members of the
body required to abstain from voting under the
provisions of this section makes the majority
or other legally required vote of approval
unattainable, then such members shall be
permitted to vote if disclosures are made as
otherwise provided herein. In the case of a
three - member governing body of a political
subdivision, where one member has abstained
from voting as a result of a conflict of
interest, and the remaining two members of the
governing body have cast opposing votes, the
member who has abstained shall be permitted to
vote to break the tie vote if disclosure is
made as otherwise provided herein.
If a conflict exists, Section 3(j) requires the public
official /employee to abstain and to publicly disclose the
abstention and reasons for same, both orally and by filing a
written memorandum to that effect with the secretary taking the
minutes or supervisor.
As Director of the Bureau of Community and Student Services
for the Department of Education, you were a "public employee." To
determine if the Ethics Law places any restrictions in addition to
those noted above, we must determine whether you are a "former
public employee" subject to the restrictions of Section 3(g) when,
in your current position, you are also a public employee. Section
3(g) of the Ethics Law 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.
Although the Ethics Law defines the term "public employee," it does
not define the term "former public employee." This Commission was
faced with a similar situation in Boonin, Opinion 90 -003. In that
case, the issue was whether an individual's resignations as a
public official of the Philadelphia Gas Commission (PGC) and as a
public employee of the City of Philadelphia contemporaneously with
his public appointment as chief executive officer of the
Philadelphia Gas Works (PGW) would classify him as a former public
official /employee. We found that Boonin was not a former public
official /employee based upon the determination that the three
entities involved, PGC, PGW, and the City of Philadelphia, were all
the same governmental body. If Boonin resigned the positions with
Ledebur, Gary W., 95 -007
Page 5
PGC and the City of Philadelphia to take a position with PGW, such
action "would constitute a transfer from two positions of public
service to a new position of public service within the same
governmental body." Boonin, at 7. Our discussion in Boonin was
"limited to [the] unique circumstances [of that case] and certainly
would not have application to situations where a public
official /employee would terminate service with [a] governmental
body and seek to provide services as an independent'contractor,
consultant, or in some capacity, other than remaining as an
employee or official within that governmental body." Id.
The instant case is distinguishable in that the governmental
bodies involved, the Pennsylvania Department of Education and the
City of Philadelphia School District, are separate and distinct.
This Commission has dealt with the issue presented herein
under Act 170 of 1978, prior to the 1989 amendment, Act 9 of 1989.
Section 3(e) of Act 170 of 1978 was very similar to Section 3(g) of
Act 9 of 1989 and provided:
(e) No former official or public employee
shall represent a person, with or without
compensation, on any matter before the
governmental body with which he has been
associated for one year after he leaves that
body."
Act 170 of 1978, §3(e). Under Act 170 of 1978, we issued opinions
dealing with issues similar to the one presently before us. In
Cohen, Opinion 79 -045, we dealt with public employees who terminate
employment with one Commonwealth agency to begin work as a public
employee with another Commonwealth agency. There, we found that
the restrictions applicable to former public employees were not
applicable to these employees because they were still public
employees and not former public employees.
In Hunt, Opinion 84 -017, we dealt with a federal Environmental
Protection Agency (EPA) employee on loan to the Pennsylvania
Department of Environmental Resources (DER). We determined that
such an employee was nevertheless a public employee under the
Ethics Law. In that Opinion, we found that, upon leaving DER and
returning to EPA, the individual would be a former public employee
subject to the restrictions of Section 3(e) of Act 170 of 1978. We
reasoned that the representation restriction of this section
referred to a "person," which under Act 170 of 1978 is defined as
"[a] business, individual, corporation, union, association, firm,
partnership, committee, club, or other organization or group of
persons." Finding that EPA was not a "person" as defined under Act
170 of 1978, we concluded that Section 3(e) would prohibit Hunt
from representing a "person" before DER but would not prohibit her
from representing EPA before DER because EPA was not a "person"
Ledebur, Gary W., 95 -007
Page 6
under Act 170 of 1978.
In Hagan, Opinion 84 -019, we dealt with a public employee of
the Department of Community Affairs (DCA) who terminated her
employment with DCA to start employment with the Community
Development Office of a county. We found the Cohen and Hunt
Opinions, were distinguishable. We found Cohen distinguishable
because, there, we dealt with the transfer of an employee from one
state agency to another and found that such a person was not a
former public employee. In Hagan, by contrast, we dealt with "two
different types or levels of government— . . . the state . and
the . . . county." Hagan, at 3. We found Hunt distinguishable
because there we dealt with a federal employee loaned to a state
agency; that opinion "was based upon the unique circumstances and
reasons supporting the [employee] loan or exchange program between
the federal and state governments." Further, we said, "because no
similar program exists . . . , we must address the question of
whether the county [Hagan serves] is or is not a `person' [under
Act 170 of 1978] and what, if any, restrictions [apply] under
Section 3(e) of the Act [170 of 1978] ." Id.
In Hagan, although we found that she was a public employee
when employed by DCA, we did not clearly state whether Hagan in her
new position with the county would be a public employee. We
nevertheless concluded that, upon termination of employment with
DCA, Hagan would be a former public employee subject to the
restrictions of Section 3(e) of Act 170 of 1978. Our analysis then
turned to the term "person" within the one year representation
prohibition; we concluded that because that term did not include
governmental body, the representation prohibition of Section 3(e)
did not apply to Hagan representing the county before DCA. We
considered legislative intent and asked "whether the legislature .
. . intended to apply the same restrictions in a circumstance [such
as Hagan's] where [the] post - Commonwealth employer is another level
of government as are clearly to be applied where a government
employee leaves government and joins a private, profit making
enterprise." We found that the Legislature intended to restrict a
former public employee's ability to represent a "person" in
circumstances where a conflict is most likely to occur, that is,
where a government employee leaves and enters the private sector.
In such a situation, the former public employee's ability
to use his or her prior experience, influence, etc., with
the agency he served to the new (private sector)
employer's financial advantage is more apparent.
Likewise, a prospective private sector employer, unlike
a governmental employer, might be able and motivated to
attempt to influence a public employee's judgment or
conduct by the promise of future employment with the
private sector employer.
Ledebur, Gary W., 95 -007
Page 7
Hagan at 4.
In Pinto, Opinion 84 -021, we dealt with a public employee of
the Office of Legislative Information who terminated employment in
the state legislative branch for employment in the state executive
branch. In Pinto, as in Hagan, we distinguished Cohen and Hunt.
We distinguished Cohen by finding that it was based on a transfer
of an employee from one agency to another within the same branch of
state government. Therefore, the individual in Cohen was not a
former public employee and was not subject to the representation
restrictions of Section 3(e) of Act 170 of 1978. Likewise, we
distinguished Hunt by finding that it was based on a DER employee
on loan from EPA. Therefore, the individual, after leaving DER and
returning to EPA, would be a former public employee subject to the
Section 3(e) representation restrictions of Act 170 of 1978.
However, the representation restrictions did not apply to the
individual representing EPA before DER because EPA was not a
"person" under Act 170 of 1978. In contrast, we noted that Pinto
dealt with an employee transferring from one branch to another. In
our Pinto analysis we stated:
The Legislature sought, through Section 3(e) of the Act
[170 of 1978], to address the possibility of conflicts
between a potential new employer and the governmental
entity a public servant leaves. The "ills" the
Legislature sought to address . . . —the potential that
an ex- employee would use his past associations to
benefit his new employer to [the] detriment of the public
and the use of his post to favor a potential
employer—do not change simply because the potential
employer is another governmental body. In Cohen, because
the bodies were within the same branch of government the
potential for conflict before and after leaving one
entity within the same branch of government were reduced.
[By contrast, Pinto would have been transferred] to an
entity within another branch of government, [hence] there
is sufficient reason to apply Section 3(e) [of Act 170 of
1978] .
Pinto at 3 -4. Although Pinto was a former public employee, the
representation restrictions generally applicable did not apply to
him with respect to the new governmental employer because the new
governmental employer was not a "person" as defined under Act 170
of 1978.
Although the Cohen, Hunt, Hagan, and Pinto Opinions were all
decided under Act 170 of 1978, they still provide valid analysis
under which to view the case presently before us. Section 3(e) of
Act 170 of 1978 and Section 3(g) of Act 9 of 1989, both quoted
above, are substantially similar; the 1989 amendment does not
change the analysis of whether a particular individual is a former
Ledebur, Gary W., 95 -007
Page 8
public employee.
Under our prevailing precedent, if an individual was
determined not to be a former public employee, the representation
restrictions of Section 3(e) of Act 170 of 1978 or Section 3(g) of
Act 9 of 1989 would not apply to that individual. If, on the other
hand, an individual was determined to be a former public employee,
then the representation restrictions would apply. Under Act 170
of 1978 the question was whether the individual's new government
employer was a "person" so as to prohibit the individual from
representing the new government employer before the old government
employer. Although the question remains the same under Act 9 of
1989, the answer may be different. The 1989 amendment added the
term "governmental body" to the definition of the term "person."
Act 9 of 1989 defines a "person" as "[a] business, governmental
body, individual, corporation, union, association, firm,
partnership, committee, club or other organization or group of
persons." (Emphasis added).
In the instant case, since you are a former public employee,
subject to the representation restrictions in Section 3(g) of Act
9 of 1989, the question is whether the City of Philadelphia School
District is a "person" as defined in Act 9 of 1989. The instant
situation is similar to Hagan and Pinto where the individuals moved
from public service in one branch of government to public service
in another branch of government—Hagan moved from the state
executive branch to the county level and Pinto moved from the
legislative branch to the executive branch. Here, you are moving
from the Pennsylvania Department of Education in the executive
branch to a local school district. It is well settled that a
school district is an agency of the Legislature. See, e.g.,
Pennsylvania Human Relations Commission v. Chester School District,
209 Pa. Super. 37, 224 A.2d 811 (1966); Chartiers Valley Joint
Schools v. County Board of School Directors of Allegheny County,
418 Pa. 520, 211 A.2d 487 (1965); Wilson v. School District of
Philadelphia, 328 Pa. 225, 195 A. 90 (1938). Therefore, you are
considered a former public employee subject to the representation
restrictions of Section 3(g) of the Ethics Law.
We must now consider whether the City of Philadelphia School
District is a "person" as defined under Act 9 of 1989 and, hence,
an entity that you may not represent before your former
governmental body. The legislature clearly added the term
"governmental body" to the definition of "person." As a
governmental body, the City of Philadelphia School District is a
"person" under the Ethics Law. Therefore, you must observe the
restrictions of Section 3(g).
Although it might be argued that the Ethics Law should not
have application because your new employment is not in the private
sector but with government, the concerns relative to Section 3(g)
Ledebur, Gary W., 95 -007
Page 9
still exist. Thus, regardless of whether the new employer is a
private company or a governmental body, employment might be based
upon considerations of contacts with the former governmental body
for the benefit of the new employer, as for example in the area of
funding.
To completely answer your request, we must identify the
governmental body with which you were associated while working with
the Department of Education. Then, we must review the scope of the
prohibitions associated with the concept and term of
"representation."
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
that governmental body.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which you were
associated upon termination of public service would be the
Department of Education. The above is based upon the language of
the Ethics Law, the legislative intent (Legislative Journal of
House, 1989 Session, No. 15 at 290, 291) and the prior precedent of
this Commission. Thus, in Sirolli, Opinion 90 -006, we found that
a former Division Director of the Department of Public Welfare
(DPW) was not merely restricted to the particular Division as was
contended but was in fact restricted to all of DPW regarding the
one year representation restriction. Similarly in Sharp, Opinion
90- 009 -R, it was determined that a former legislative assistant to
a state senator was not merely restricted to that particular
senator but to the entire Senate as his former governmental body.
Therefore, within the first year after termination of service
with the Department of Education, Section 3(g) of the Ethics Law
would apply and restrict representation of persons or new employers
vis -a -vis the Department of Education.
It is noted that Act 9 of 1989 significantly broadened the
definition of the term "governmental body with which a public
official or public employee is or has been associated." It was the
Ledebur, Gary W., 95 -007
Page 10
specific intent of the General Assembly to define the above term 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.
Therefore, since the Ethics Law must be construed to ascertain
and effectuate the intent of the General Assembly under 1 Pa.
C.S.A. §1901, it is clear that the governmental body with which you
were associated is the Department of Education.
Turning now 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. Likewise, there is no general limitation on the
type of employment in which a person may engage, following
departure from their governmental body. It is noted, however, that
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, that individual 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 with his former governmental body.
In respect to the one year restriction against such
"representation," the Ethics Law defines "Represent" as follows:
Section 2. 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.
In P000vich, Opinion 89 -005, we interpreted the term
"representation" as used in Section 3(g) of the Ethics Law to
Ledebur, Gary W., 95 -007
Page 11
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 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.
We have also held that 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.
In Shay, Opinion 91 -012, we held that Section 3(g) would prohibit
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 pertained to a contract
which existed prior to termination of public service. Therefore,
within the first year after termination of service, you should not
engage in the type of activity outlined above.
You may assist in the preparation of any documents presented
to the Department of Education. However, you may not be identified
on documents submitted to the department. You may also counsel any
person regarding that person's appearance before the department.
Once again, however, the activity in this respect should not be
revealed to the department. Of course, any ban under the Ethics
Law would not prohibit or preclude the making of general
informational inquiries of the department 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.
Additionally, in Confidential Opinion 93 -005, we held that
Section 3(g) precludes a former public official /employee from
providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
Ledebur, Gary W., 95 -007
Page 12
Lastly, 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 Act has not been considered in that they do not
involve an interpretation of the Ethics Law.
IV. CONCLUSION:
As a director of the Bureau of Community Services for the
Department of Education, you were considered a "public employee" as
defined in the Ethics Law. Upon termination of service with the
Department of Education, you became a "former public employee"
subject to Section 3(g) of the Ethics Law. The former governmental
body is the Department of Education. The restrictions as to
representation outlined above must be followed. The propriety of
the proposed conduct has only been addressed under the Ethics Law.
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 thirty 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,
OefiOAUSAU &AL—)
Daneen E. Reese
Chair