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HomeMy WebLinkAbout01-602 RockovichWilliam P. Smith, Esquire 223 Foxburg Drive Pittsburgh, PA 15205 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: ADVICE OF COUNSEL November 21, 2001 01 -602 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 ale t , 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-115B-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 Tight of the Commonwealth Courts 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 Tare] 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 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