HomeMy WebLinkAbout01-602 SmithWilliam P. Smith, Esquire
223 Foxburg Drive
Pittsburgh, PA 15205
ADVICE OF COUNSEL
November 21, 2001
01 -602
Re: Former Public Official /Employee; Former Director, County Probation Services;
Former Officer, County Chief of Adult Probation and Parole Officers of
Pennsylvania; Conflict; Contract; Project Management Services; Adult Probation
Information Rollout Project Implementation Manager; County Commissioners
Association of Pennsylvania; Grant; Pennsylvania Commission on Crime and
Delinquency.
Dear Mr. Smith:
This responds to your letter of October 17, 2001, by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa. .S. § 1101 et seq., presents any prohibition or restrictions upon an individual with
regard to contracting with the County Commissioners Association of Pennsylvania
( "CCAP ") to provide project management services, where: (1) the individual previously
served as the Director of Washington County Probation Services and as an officer of the
County Chief of Adult Probation and Parole Officers of Pennsylvania ( "CCAPPOP "); (2)
prior to terminating his service in the aforesaid positions, the individual attended a general
membership meeting of CCAPPOP at which he announced his impending retirement from
Washington County and expressed his interest in providing the project management
services to CCAP; and (3) the Executive Committee of CCAPPOP thereafter
recommended the individual to CCAP for the project manager position.
Facts: You seek an advisory from the State Ethics Commission on behalf of your
client, Stanley Rockovich ( "Rockovich "). You have submitted extensive facts which may
be fairly summarized as follows.
Rockovich is the former Director of Washington County Probation Services, having
retired from that position in 2001. As Director of Washington County Probation Services,
Rockovich served at the pleasure of the president judge.
Rockovich is also a former officer of the County Chief of Adult Probation and Parole
Officers of Pennsylvania ( "CCAPPOP "), having most recently served as its Treasurer.
Smith - Rockovich, 01 -602
November 21, 2001
Page 2
Although your request letter does not state the date at which Rockovich ceased to be
Treasurer of CCAPPOP, it appears from the context of the facts which you have submitted
that Rockovich served in that capacity in 2001, during certain events described herein
which are material to your advisory request.
Your advisory request pertains to Rockovich's proposed provision of project
management services to the County Commissioners Association of Pennsylvania (CCAP)
relative to "Adult Probation Information Rollout Project No. 1999 -DS -1158- 10781." This
particular project is based upon a grant from the Pennsylvania Commission on Crime and
Delinquency ( "PCCD ") for the conversion of existing jail and adult probation information
management systems to a Windows operating system. You state that the Rollout Project
Implementation Manager will be responsible for providing central project office services as
well as the following duties: coordinating and scheduling of "rollout for county" in
cooperation with "DSI "; providing primary customer support; assisting in coordination with
"CDI" of standard training material; coordinating future software releases and meetings
with consortium members to gather user requirements; and conducting a survey to identify
technical infrastructure and data conversion needs. (October 17, 2001, letter of Smith at
3).
CCAP has proposed the selection of Rockovich as the Project Implementation
Manager. However, Chief Counsel for PCCD has questioned whether ethical
considerations would preclude the selection of Rockovich. You have submitted a copy of a
letter dated September 10, 2001, from PCCD's Chief Counsel to a CCAP staff member in
this regard.
The PCCD Chief Counsel's letter expresses concerns as to both federal and state
ethical provisions. As for Pennsylvania's Ethics Act, the letter references Section 1103(a)
of the Ethics Act, pertaining to conflict of interest, and Section 1103(g) of the Ethics Act, a
1 -year revolving door provision prohibiting "representation" of "person(s)" before the
former governmental body for promised /actual compensation.
The facts as you have submitted them indicate that CCAP decided to hire a
consultant from the user community pursuant to a recommendation of the Executive
Director of CCAPPOP. You state that Chiefs of Adult Probation from five "beta site"
counties (excluding Washington County) suggested the selection of a candidate with both
technology and probation experience.
You further state that in May 2001 Rockovich attended a general membership
meeting of CCAPPOP at which he announced his impending retirement from Washington
County and expressed his interest in providing the project management services to CCAP.
Thereafter, the Executive Committee of CCAPPOP recommended to CCAP that
Rockovich be selected for the project manager position. Following a publicly advertised
interview process, Rockovich was selected over three other candidates on October 12,
2001.
You seek an advisory as to whether Rockovich would violate the Ethics Act if he
would accept the position as Rollout Project Implementation Manager for the CCAP. You
present several points /arguments in support of your view that the proposed consultancy
would not transgress Section 1103(a) or Section 1103(g) of the Ethics Act.
In the context of Section 1103(a), you contend that there would be no conflict of
interest in this instance. You note that the grant in question is to the CCAP, which may
accept or reject the recommendations of CCAPPOP. You state that the CCAP and the
CCAPPOP are not affiliated. Moreover, you point out that the recommendation of
CCAPPOP to hire Rockovich came as a result of a recommendation by the general
membership and by the Executive Committee.
In the context of Section 1103(g), you make the following points /arguments.
Smith - Rockovich, 01 -602
November 21, 2001
Page 3
First, you state that Rockovich was not previously associated with CCAP in any
capacity. Rockovich's prior associations were with the Washington County Courts and
CCAPPOP, which themselves are not associated with CCAP.
Second, you assert that Rockovich would not be representing CCAP before
Washington County or CCAPPOP.
You acknowledge that Washington County is a member of CCAP and is one of the
multiple counties that will be served by CCAP in the rollout project. However, you state
that Rockovich's capacity as Rollout Project Implementation Manager would not require
him to represent CCAP before Washington County, but rather, merely to coordinate,
schedule, support, and otherwise carry out the project implementation.
You state that Rockovich's employment would not be contingent upon Washington
County's participation, nor would it be associated as an inducement for Washington County
to participate. You contend that to the extent Washington County would be one of at least
29 counties participating in the project, any contact by Rockovich with Washington County
would be de minimis. You further claim that Washington County's membership in CCAP
provides a "counterbalancing element of control." (October 17, 2001, letter of Smith at 3).
As for CCAPPOP, it is a non - profit corporation. Specifically, CCAPPOP is an
association of Adult Probation Chiefs which makes recommendations and conducts
research studies related to probation services. You contend that CCAPPOP is not an
establishment of any branch of government and that it is not a "governmental body" as
defined in Section 1102 of the Ethics Act.
You note that participation in CCAPPOP is voluntary. All CCAPPOP members and
officers, with the exception of the Executive Director, participate in CCAPPOP without
compensation. In particular, Rockovich received no compensation for his participation in
CCAPPOP, although he was reimbursed for out -of- pocket expenses. You claim:
The [Ethics] Act specifically excludes individuals serving on advisory boards
without compensation, and who receive only expense reimbursement. Mr.
Rockovich's association with the CCAPPOP would be such a position.
(October 17, 2001, letter of Smith at 3).
As for interaction between the CCAPPOP and CCAP, you state that the CCAPPOP
does not receive any funding from CCAP. CCAP has no supervisory, membership,
shareholder, or other interest in the governance of CCAPPOP. While the two
organizations frequently cooperate to implement certain programs, you state that there is
no "affiliation" between the two organizations that would make Rockovich a former public
employee associated with CCAP.
Based upon all of the above, you seek an advisory opinion as to whether the Ethics
Act would prohibit Rockovich from entering into a contract with CCAP to serve as the
Rollout Project Implementation Manager for Adult Probation Information Rollout Project
No. 1999- DS -115B- 10781.
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.
Smith - Rockovich, 01 -602
November 21, 2001
Page 4
The threshold question presented by your inquiry is whether, in his capacities as
Director of Washington County Probation Services and as an officer of the CCAPPOP,
Rockovich would be subject to the jurisdiction of the State Ethics Commission, and
specifically, Sections 1103(a) and 1103(g) of the Ethics Act.
You state that as Director of Washington County Probation Services, Rockovich
served at the pleasure of the President Judge and was associated with the Washington
County Courts. In L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Cmwlth. 2000),
the Commonwealth Court of Pennsylvania ruled that the State Ethics Commission lacked
jurisdiction over a county's Chief Adult Probation Officer. The Court stated that the
Supreme Court of Pennsylvania has exclusive jurisdiction over judicial employees and
judicial officers. Id., 744 A.2d. at 801 -803.
Subsequently, in Billotte, Opinion 00 -005, the Commission addressed the issue of
whether, in light of the Commonwealth Court's holding in L.J.S., the Ethics Act applies to
individuals meeting the Ethics Act's definition of "public official" or "public employee" who
are part of the Judicial Branch of government. In reviewing the L.J.S. decision, the
Commission stated:
Based upon the L.J.S. decision, this Commission lacks jurisdiction to
enforce the Ethics Act as to judicial officers and judicial employees.
However, in deciding the L.J.S. case, Commonwealth Court emphasized
that judicial officers (and presumably judicial employees as well) are not
immune from criminal prosecution, and "like any citizen [are] subject to
investigation by the proper authority for any criminal activity.' L.J.S., supra,
744 A.2d at 803 (Citation omitted).
We would note that the Ethics Act provides criminal penalties
for violations of its requirements.... 65 Pa.C.S. § §1109(a),(b).
Although this Commission lacks jurisdiction to enforce the Ethics Act
as to judicial officers and judicial employees, based upon the
Commonwealth Court's holding in L.J.S. v. State Ethics Commission, 744
A.2d 798 (Pa. Cmwlth. 2000), this Commission may not go so far as to
determine that the Ethics Act does not apply to them. To the extent that
question remains to be answered, it must be answered by the Courts.
Billotte, Opinion 00 -005 at 6.
Thus, the necessary conclusion is that in his former capacity as Director of
Washington County Probation Services, serving at the pleasure of the President Judge,
Rockovich would be considered a judicial officer /employee beyond the jurisdiction of the
State Ethics Commission. Given the Commission's lack of jurisdiction to perform its duties
insofar as judicial officers and judicial employees are concerned, your inquiry may not be
addressed with respect to Rockovich's former position as Director of Washington County
Probation Services.
The determination of whether Rockovich would be subject to the Ethics Act as to his
service as Treasurer of the CCAPPOP would ultimately hinge upon the status of the
CCAPPOP.
Since Rockovich was not employed by the CCAPPOP, he would not be considered
a "public employee" as to his service as Treasurer; the only definition which conceivably
could apply would be the definition of "public official ":
§ 1102. Definitions
Smith - Rockovich, 01 -602
November 21, 2001
Page 5
"Public official." Any person elected by the public or
elected or appointed by a governmental body or an appointed
official in the executive, legislative or judicial branch of this
Commonwealth or any political subdivision thereof, provided
that it shall not include members of advisory boards that have
no authority to expend public funds other than reimbursement
for personal expense or to otherwise exercise the power of the
State or any political subdivision thereof.
65 Pa.C.S. § 1102.
The issue would reduce to whether the CCAPPOP would be considered a
"governmental body" or "political subdivision" as defined by the Ethics Act.
The Ethics Act defines the terms "governmental body" and "political subdivision" as
follows:
§ 1102. Definitions
"Governmental body." Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative body or other
establishment in the executive, legislative or judicial branch of a
state, a nation or a political subdivision thereof or any agency
performing a governmental function.
"Political subdivision." Any county, city, borough,
incorporated town, township, school district, vocational school,
county institution district, and any authority, entity or body
organized by the aforementioned.
65 Pa.C.S. §1102.
The fact that the CCAPPOP is a non - profit corporation is not dispositive of its status.
A non - profit corporation could qualify as a governmental body, for example, as an "agency
performing a governmental function." 65 Pa.C.S. § 1102; Confidential Opinion 01 -005. A
non - profit corporation could qualify as a political subdivision, for example, as having been
organized by other political subdivision(s). Area Loan Organizations Under Capital Loan
Fund Act, Opinion 95 -006 at 12; Gent, Opinion 95- 006 -R.
The facts which you have submitted do not enable a conclusive determination of the
status of the CCAPPOP. Therefore, this Advice must necessarily be limited to providing
guidance under each of the possible scenarios.
If the CCAPPOP would not be considered a "governmental body" or "political
subdivision ", Sections 1103(a) and 1103(g) of the Ethics Act would not apply to Rockovich
with regard to his service as Treasurer of the CCAPPOP. On the other hand, if the
CCAPPOP would be considered a governmental body or political subdivision, Sections
1103(a) and 1103(g) of the Ethics Act would apply to Rockovich as to his service as
Treasurer of the CCAPPOP.
It is noted that the exclusion in the above definition of "public official" is for members
of advisory boards that do not have the authority to expend public funds, other than
reimbursing personal expenses, or to otherwise exercise the power of the State or any
political subdivision thereof. The exclusion is not, as you have stated, for individuals
serving on advisory boards without compensation other than expense reimbursements.
(October 17, 2001, letter of Smith at 3). Indeed, in applying the definition of "public official,"
Smith - Rockovich, 01 -602
November 21, 2001
Page 6
as a matter of constitutional law, it makes absolutely no difference whether an individual is
compensated. Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981).
If the CCAPPOP would be considered a governmental body or political subdivision,
Sections 1103(a) and 1103(g) of the Ethics Act would apply to Rockovich who would be
considered a "public official" as to his service as Treasurer of the CCAPPOP.
Section 1103(a) of the Ethics Act provides:
§ 1103. Restricted activities
(a) Conflict of interest. - -No public official or public
employee shall engage in conduct that constitutes a conflict of
interest.
65 Pa.C.S. § 1103(a).
The following terms pertaining to conflicts of interest under the Ethics Act are
defined as follows:
§ 1102. 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. The term 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
"Authority of office or employment." The actual
power provided by law, the exercise of which is necessary to
the performance of duties and responsibilities unique to a
particular public office or position of public employment.
65 Pa.C.S. § 1102.
Section 1103(g) of the Ethics Act provides:
§ 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:
Smith - Rockovich, 01 -602
November 21, 2001
Page 7
§ 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 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.
In applying Section 1103(a) of the Ethics Act to the facts which you have submitted,
the necessary conclusion is that: (1) to the extent Rockovich was Treasurer of CCAPPOP
when, at a May 2001 CCAPPOP general membership meeting, he announced his
impending retirement and his desire to perform the project management services for CCAP
as to Adult Probation Information Rollout Project No. 1999- DS -115B- 10781, and (2) to the
extent Rockovich as Treasurer of CCAPPOP was a "public official" subject to the Ethics
Act, Rockovich's acceptance of the position of Rollout Project Implementation Manager for
Adult Probation Information Rollout Project No. 1999- DS -115B -10781 for which the
CCAPPOP Executive Committee subsequently recommended him would complete the
elements for a conflict of interest in transgression of Section 1103(a) of the Ethics Act. The
acceptance by Rockovich of the position for which he advocated while Treasurer, and for
which the CCAPPOP Executive Committee thereafter recommended him, would constitute
a private pecuniary benefit satisfying the final element for a conflict of interest under
Section 1103(a) of the Ethics Act. See, Kieslinq, Opinion 88 -005 at 7. Although you argue
that the CCAP could accept or reject the recommendations of CCAPPOP, it is clear that
the CCAP takes CCAPPOP recommendations into consideration, as you acknowledge that
it did with regard to the prior modification request to hire the consultant from the user
community.
Based upon the above conclusion, there is no need to further address the
restrictions of Section 1103(g).
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: For purposes of responding to the instant inquiry under the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq., the necessary
conclusion is that in the former capacity as Director of Washington County Probation
Services, Stanley Rockovich ( "Rockovich ") would be considered a judicial officer /employee
beyond the jurisdiction of the State Ethics Commission. Given the Commission's lack of
jurisdiction to perform its duties insofar as judicial officers and judicial employees are
concerned, the inquiry may not be addressed with respect to Rockovich's former position
as Director of Washington County Probation Services.
Smith - Rockovich, 01 -602
November 21, 2001
Page 8
The determination of whether Rockovich would be subject to the Ethics Act as to his
service as Treasurer of the County Chief of Adult Probation and Parole Officers of
Pennsylvania ( "CCAPPOP ") would ultimately hinge upon the status of the CCAPPOP.
The submitted facts do not enable a conclusive determination of the status of the
CCAPPOP. If the CCAPPOP would not be considered a " overnmental body" or "political
subdivision" as defined by the Ethics Act, Sections 1103(a)) and 1103(g) of the Ethics Act
would not apply to Rockovich with regard to his service as Treasurer of the CCAPPOP. If
the CCAPPOP would be considered a governmental body or political subdivision, Sections
1103(a) and 1103() of the Ethics Act would apply to Rockovich insofar as his service as
Treasurer of the CCAPPOP would be concerned.
In applying Section 1103(a) of the Ethics Act to the submitted facts, the necessary
conclusion is that: (1) to the extent Rockovich was Treasurer of CCAPPOP when, at a
May 2001 CCAPPOP general membership meeting, he announced his impending
retirement and his desire to perform project management services for the County
Commissioners Association of Pennsylvania ( "CCAP ") as to Adult Probation Information
Rollout Project No. 1999- DS -115B- 10781, and (2) to the extent Rockovich as Treasurer of
CCAPPOP was a "public official" subject to the Ethics Act, Rockovich's acceptance of the
position of Rollout Project Implementation Manager for Adult Probation Information Rollout
Project No. 1999- DS -115B -10781 for which the CCAPPOP Executive Committee
subsequently recommended him would constitute a private pecuniary benefit completing
the elements for a conflict of interest in transgression of Section 1103(a) of the Ethics Act.
Based upon this conclusion, there is no need to further address the restrictions of Section
1103(g).
Lastly, the propriety of the proposed conduct has only been 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
pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the
Commission by hand de!ivery, 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