HomeMy WebLinkAbout91-533 RubensteinSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783-1610
ADVICE_ .OF CO,PNSEL
April 25, 19.91
Mr. Carl Rubenstein 91 -533
503 Welsh Road
Philadelphia, PA 19115-
Re: Former. Public Employee, Section 3(g), Pennsylvania
Department of Public, Program Analyst II.
Dear Mr. Rubenstein:
This responds to your letter dated March 4, 1991, in which
you requested advice from the State Ethics Commission.
Issue3 Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of a Program Analyst II
following termination of service with the Pennsylvania Department
of Public Welfare .(DPW).
Facts: You were furloughed from the Pennsylvania Department of
Public-Welfare (DPW) on February 28, 1991. During your ::twenty: -,
month tenure with the Department, you served as a Program Analyst-
II for the Refugee Resettlement and Immigration ProgrAvirwt
However, you were organizationally housed within the Of
Social Program's Division of Administrative and: 'MBriage rct
Support (DAMS) . Your role was to provide te$hnical ' assis#tazrnextro
program staff within the Refugee Resettlement and ' Immigraarldn,
Programs. Specifically, this consisted of •- cOmpie?tiig ledealat
quarterly performance and expenditure ' repor% io . manag - auct
developing the databases which ' house both 'programs' ' client
programmatic and fiscal data, and monitoring' the' - statewide
refugee and immigration social service - providers tdu =ensue , the
these agencies adhere to federal and state guidelines. 1
You have submitted your job description, which job
description is incorporated herein by reference: Your job ,
description enumerates various specific duties which include, but
are not limited to: assisting in development and submission of
all grant applications in the Refugee Resettlement Program and
State Legalization Assistance Impact Program and planning
and analysis of resource allocation in these programs; developing
and monitoring grant tracking systems and assuring proper coding
You seek the advice of the State Ethics Commission regarding
whether you are eligible to accept employment with Jewish
'Employment and Vocational Services (JEVS) which is the state
contracted agency that serves Philadelphia's refugee population.
This agency found out about your furlough and has contacted you
and ,inquired, regarding your interest in accepting employment
within that organization. You now seek a ruling from the State
- Ethics- Commission on your eligibility to accept employment from
JEVS. You emphasize that while employed with DPW you were
organizationally housed within DAMS - not the Refugee
Resettlement Program. ,In addition, you had no contract
management'responsirbilities with JEVS or any other agency and you
had no role in the allocation of funds to this agency. You note
'that the JEVS contract manager is organizationally housed within
the; Refugee Program. All recommendations concerning contract
allocations dre: handled by the Refugee Resettlement Program
Manager.
Discussion: As a Program Analyst II for the Pennsylvania
Department of Public Welfare (DPW), you would be considered a
"public employee" within the definition of that term as set forth
±n the Public Official and Employee Ethics Law and the
Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code
Section 1.1. 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 contracting, procurement,
planning- = inspecting, administering or monitoring grants,
leasing,, regulating, auditing or other activities where the
economic impact is greater than de minimus on the interests of
another person. _
Consequently, upon termination of public service, you would
become a` "former' public employee" subject to Section 3(g) of the
Mr. Carl Rubenstein
Page 2
of charges to all federal grants; co grant reporting
requirements with the Department's comptroller to assure timely
submission of all financial status reports; assisting program
staff with preparing budgets for individual grants as well as
assisting in preparation of state budget data; performing
planning to assure the most efficient and best use of federal
grant funds in the various programs; coordinating with system and
computer consultants in the - design, implementation, and
evaluation of an extensive personal computer statewide network;
reviewing contract budgets to assure compliance with contract
procurement requirements as well as federal funding requirements;
reviewing and approving all expenditure reports from refugee
social service providers; and making recommendations to program
managers staff if expenditure reports are not within acceptable
limits.
Mr Carl Rubenstein
Page: 33
Public Official and Employee Ethics Law. . Section 3(g) of the
Ethics Act provides that:
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.
Initially, to answer your request the governmental body with
which you were associated while working_ with DPW must be
identified. Then, the scope of the prohibitions associated with
the concept and term of "representation" must be reviewed.
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 Yom• wane'
associated upon termination of public service-. wou±th DPW;
including but not limited to the Refugee Neelatnlement. and
Immigration Programs and the Office of Social Pnosaax f III. i ion
of Administrative and Management Support. 'thy aBotrAP is ba:sedt
upon the language of . the Ethics Law, 'the= ] s1 a ive intent .
(seaislative Journal of House, 198g 'Session, No. 15 at 290, 291)
and the prior precedent of this Thus,. in filgsall,
Opinion 90-006, the_. Commission found- that a former Division
Director of the Department of Public Welfare (DPW), was not merely
restricted to the particular Division as was contented but was in
fact restricted- to all of DPW regarding the one year
representation restriction. Similarly in Share, 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. 6enate=: as his_ former' governmental body.
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 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:
Mr. Carl Rubenstein
Page 4
Therefore, within the first year after termination of
service with DPW, Section 3(g) of the Ethics Law would apply and
restrict representation of persons or new employers vis -a -vis
DPW.
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...
:Lecrislative 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 lila,..e.S.A. 1901, it is clear that the governmental body with
wlItch. °were is DPW, including but not limited to
the:I -Refugee Resettlement and Immigration Programs and the Office
of Social Program's Division of Administrative and Management
Support.
Turning now to the scope of the restrictions under Sec on
3( the Ethics Law doe e nOt -affect one's ability to .appear
before agencies orr entities other than with respect to the former
governmental body. Likewise, there - is no general ;'limi'tation on
the type of employment in which a -person may <engage, ,£dhkc ,tiZ g
departure from their governmental body. It is -note4, Iiowaver,
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 perks
public employment he must act consistently with the public t xust
and upon departure from the .public €sector, that "individual -,should
: not :he a1lQras d cto utilize ihiz -association With tithe plk ic _sector,
clfttoials : or - Employees to _secure for himself .f zor a ,now <emp1i yer,
went or atenefits that :may .. be obtainable , may Vbecause c ' his
ssadiatitOn with ribs ,former cgovernmental bod(ay.
Mr. Carl Rubenstein
Page 5
In respect to the one year representatiOnr the Ethics -Law
defines "Represent" as follows:
Section 2. Deflations.
"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 addition, the term "Person" is defined as follows-under
the Ethics Law:
Section 2. Definitions.
"Person." A business, governmental
body, individual, corporation, union,,
association, firm, partnership, committee .
club or other organization or group of
persons.
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to 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 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.
The Commission has 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. Therefore, within the first year after
Mr. Carl Rubenstein
Page 6
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 DPW so long as you are not identified as the
preparer. You may also counsel any person regarding that
person .,appearance before DPW. Once again, however, the
activity . in this respect should not be revealed to DPW. Of
course, any -ban under the Ethics Law would not prohibit or
preclude:; the' making of general informational inquiries of DPW to
seCure;.informa 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.
Therefore, you may accept employment with JEVS, but you will
be subject to the restrictions set forth herein.
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 and no public official /employee shall solicit
or accept any .thing of monetary value based upon the
understanding that the vote,. official action, or judgement of the
public official /employee would be influenced thereby. Reference
is made to these provisions of the law not to imply that there
,has 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 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.
Conclusion: As a Program Analyst II with DPW, you would be
, : considered •.a "public employee" as defined in the Ethics Law.
Upon termination. of service with DPW, you would become a "former
public employee" subject to Section 3(g) of the Ethics Law. The
former governmental body is DPW. The •restrictions as to
representation outlined above must be followed. The propriety of
the proposed conduct has only been •addressed under the Ethics
Law.
Further, should service be terminated, as outlined ` abd(e,
the Ethics Law also requires that a Statement of 'Finarid.tal
Interests be filed for the year following termination of servirce.
Pursuant to Section 7(11), this Advice is 'a complete defense
in any enforcement proceeding initiated by the COminission, aid
evidence - of good faith conduct in any other civil or criminal
Mr. Carl Rubenstein
Page 7
proceeding, providing the requestor has disclosed truthfully, all
the material facts and committed the acts complained of in
reliance on the Advice given.
such.
This letter is a public record and will be mad available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full
Commission review this Advice. A personal appearance before the
Commission will be scheduled and a formal Opinion from the`
Commission will be issued. Any such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code §2.12.
incerely,
Vincent`'J. Dopko,
Chief Counsel
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