HomeMy WebLinkAbout02-593 VilloneJoseph J. Villone
P.O. Box 67, George Street
Dalmatia, PA 17017
Dear Mr. Villone:
ADVICE OF COUNSEL
August 23, 2002
02 -593
Re: Former Public Employee; Section 1103(g); Drug and Alcohol Program
Supervisor; Bureau of Drug and Alcohol Programs; Prevention Division;
Department of Health.
This responds to your letter of July 20, 2002, by which you requested advice from
the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.GS. 1101 et seq., presents any restrictions upon employment of a Drug and
Alcohol Program — Supervisor following termination of service with the Pennsylvania
Department of Health.
Facts: You are a former Drug and Alcohol Program Supervisor for the Bureau of
Wand Alcohol Programs, Prevention Division, of the Department of Health ( "DOH "),
having retired on January 25, 2002. You have submitted a copy of your job description,
which is incorporated herein by reference.
Per your job description, your job duties have included, inter, alia, the following:
supervising a unit of prevention program analysts responsible for planning, developing
and monitoring programs for the prevention of alcohol, tobacco and other drugs;
supervising professional staff in planning, developing and implementing policies,
procedures and program strategies for the Performance Base Prevention initiative and
companion management information system, and the Workforce initiative; ensuring the
collection and analysis of data required in the planning, development and monitoring of
public and private programs for the prevention of alcohol, tobacco and other drug abuse
(ATODA); supervising the provision of technical assistance for the Single County
Authorities (SCA) relative to ATODA; collaborating with the Pennsylvania Department of
Education in developing Drug Free Schools and Communities guidelines and providing
a leadership role in directing the use of funds for the development and delivery of
prevention services by local school districts and SCAs; ensuring compliance with and
timely review of federal and state funding initiatives as required; and coordinating, in
conjunction with the Division Director, activities of prevention program analysts.
Villone, 02 -593
August 23, 2002
Page 2
You state that the Bureau of Drug and Alcohol Programs would like to contract
with you to conduct some training. However, the Bureau has asked you to obtain
documentation from the State Ethics Commission as to Section 1103(g) of the Ethics
Act which relates to former public officials /public employees.
You state that you were previously informed that Section 1103(g) restricts you
from representing any person or firm on a matter such as lobbying activities after
leaving public employment. In that you state that would not be associated with or
representing a firm or another person, you ask whether Section 1103(g) would prohibit
you from working directly with the Bureau when they would request your services.
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 a Drug and Alcohol Program Supervisor for the Bureau
of Drug and Alcohol Programs, Prevention Division, of the Department of Health
( "DOH "), 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 e cT - sc ription, 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 public 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
Villone, 02 -593
August 23, 2002
Page 3
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.
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 former public
official /public employee may not be identified on documents submitted to the former
governmental body. The former 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
Villone, 02 -593
August 23, 2002
Page 4
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
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 were associated upon termination of
public service is the DOH in its entirety including, but not limited to the Bureau of Drug
and Alcohol Programs, Prevention Division. Therefore, for the first year after
termination of service with DOH, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before DOH.
As to the question you have posed, you are advised that Section 1103(g) of the
Ethics Act would preclude you from conducting training for compensation as an
independent contractor with the Bureau of Drug and Alcohol Programs of DOH. To
perform such services as an independent contractor with the Bureau of Drug and
Alcohol Programs would transgress Section 1103(g) of the Ethics Act because it would
necessarily involve prohibited representation of yourself before your former
governmental body in providing such training services. As to your statement that you
will not be representing a firm or another person, the Commission has held that the
restriction also prohibits representing oneself before the former governmental body.
See, Confidential Opinion 93 -005, supra.
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 a Drug and Alcohol Program Supervisor
fior the Bureau of Drug and Alcohol Programs, Prevention Division, of the Department of
Health ( "DOH "), you would be considered a "public employee" as defined in the Public
Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon
termination of service with DOH, you became a "former public employee" subject to
Section 1103(g) of the Ethics Act. The former governmental body is DOH in its entirety
including, but not limited to, the Bureau of Drug and Alcohol Programs, Prevention
Division.
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
Villone, 02 -593
August 23, 2002
Page 5
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