HomeMy WebLinkAbout01-550 MieleAnthony L. Miele
P.O. Box 69
Blanchard, PA 16826
ADVICE OF COUNSEL
May 8, 2001
01 -550
Re: Former Public Employee; Section 1103(g); Park Manager; Department of
Conservation and Natural Resources; Bureau of State Parks; Bureau of
Information Technology; 95 -Day Annuitant Program; Private Contractor Who Has
A Contract With Commonwealth.
Dear Mr. Miele:
This responds to your letter of April 5, 2001, 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 Park Manager following termination of
service with the Department of Conservation and Natural Resources.
Facts: On June 30, 1999, you retired from your position as Park Manager of Bald
Eagle State Park in the Bureau of State Parks of the Department of Conservation and
Natural Resources ( "DCNR "). You have submitted a copy of your job description, which
is incorporated herein by reference. Shortly after your retirement, you returned to DCNR
as an annuitant under the 95 -day annuitant program to test software for the
Pennsylvania State Parks Reservation and Revenue System computer program. You
currently work for the Bureau of Information Technology of DCNR, although you are still
classified as a Park Manager.
You state that you are currently completing your second year as an annuitant.
You state that DCNR would like you to be available to work for more than 95 days per
year, which is the limitation imposed by the annuitant guidelines. Hence, you are
exploring the possibility of working for a private contractor on the DGS, ITQ contract so
that you may continue to test software after your 95 days expires.
Given the above facts, you pose the following questions:
1. Since you retired in June 1999, whether you are now permitted to work for
a private contractor who has a contract with the Commonwealth;
Miele, 01 -550
May 9, 2001
Page 2
2. Whether your wage employee status as an annuitant "counts" as
continued employment;
3. If the answer to question # 2 is in the affirmative, whether you would be
permitted to engage in a contract or work for a contractor who has a contract with the
Commonwealth.
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 Park Manager of Bald Eagle State Park in the Bureau
of State Parks of the Department of Conservation and Natural Resources ( "DCNR "),
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
§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 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 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.
Miele, 01 -550
May 9, 2001
Page 3
"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
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 -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(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
Miele, 01 -550
May 9, 2001
Page 4
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 DCNR in its entirety. Therefore, for the first year after termination of
service with DCNR, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of "persons" before DCNR.
It is noted that your request involves participation in a program that permits a
retiree to work for DCNR for up to 95 days in a fiscal year. It is further noted that you
terminated employment with DCNR on June 30, 1999, at which point, you became a
former public employee. When you returned to work for that agency under the 95 -day
program shortly after your retirement, you once again became a public employee. Upon
completion of your second 95 -day period of working for DCNR, you will once again
become a former public employee. Hence, you could not engage in prohibited
representation for one year after completing work under the 95 -day program. See,
McGlathery, Opinion 00 -004 (where the full Commission held that a public employee
who would retire from PennDOT but would subsequently return to work for PennDOT
under a program which allows retirees to work up to 95 days per fiscal year would, in so
doing, become a "public employee" again. Upon termination of service under that
program, the retiree would once again become a former public employee subject to the
restrictions of Section 1103(g). The restrictions of Section 1103(g) would apply for a full
one year period each time the individual would become a former public employee).
Having established the above, your specific inquiries shall now be addressed.
With regard to your first, second and third questions, you are advised that the
Ethics Act would not prohibit you from working for a private contractor who has a
contract with the Commonwealth; however, in performing your job duties for the private
contractor, you could not engage in prohibited representation, as detailed above, before
DCNR for one -year following termination of employment with DCNR, that is, one year
following the date on which you would complete your second 95 -day period. Your
employment status with respect to your retirement on June 30, 1999, your subsequent
return to work under the 95 -day program, and your eventual completion of the 95 -day
program has been fully addressed above.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Section 1103(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 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 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 Park Manager of Bald Eagle State Park in
the Bureau of State Parks of the Department of Conservation and Natural Resources
( "DCNR "), 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 DCNR, you would become a "former public employee" subject to Section
Miele, 01 -550
May 9, 2001
Page 5
1103(g) of the Ethics Act. The former governmental body is DCNR 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 complained 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.
Sincerely,
Vincent J. Dopko
Chief Counsel