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HomeMy WebLinkAbout91-540 SchwartzMr. David B. Schwartz 91 -540 Room 569 Forum Building Commonwealth Avenue Harrisburg, PA 17120 Re: Conflict, Public Official /Employee,, Council M4 r•Ti_; ;x c ,' . Developmental Disabilities Planning Council, Subsec tiv.m . Employment with Commonwealth Institute Funded by Council. Dear Mr. Schwartz: ::: STATE I C MISSION 309 B . PO. BOX11470 . HARRISBURG, PA17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 17, 1991 This • responds to your letters of April 1, 1991 and April 3.,. 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a member of . th Developmental. Disabilities Planning Council from applying for position of Executive Director of the Commonwealth Institute,' which organization is funded by the Developmental Disabilities- Planning Council. Facts: As Executive Director of the Commonwealth' .. of Pennsylvania, Developmental Disabilities Plann..izig.Council you have asked by Ms. Lucy C. Spruill, a member'" of'rr' L, to inquire with the State Ethics Commission regal i the pr of, of her applying for a position as Executive : 'ecwor ;,t an organization, that is funded by DDPC. You have. submitted f ar'i s both through your letters of April 1 and April.... 3, 1991 As we l,_ y az in two telephone conversations with the CoriimW:ion.. on er ,a: u -. • April 1 - April 3, 1991, the contents of aiic r re1e7..inone: conversations are incorporated herein by reference"' Ms. Spruill was appointed by the Governor .to u* ' a member of DDPC in January of 1990, and service on DDPC is '. non - paid appointment. Ms. Spruill also serves in her professional life es Administrative Supervisor for theRose1ia Center in,Pttsburgh_ Ms . Spruill is applying_ for the position of Executive :Director of the Commonwealth Institute in Harrisburg: You advise that the Institute (Institute) is funded by DDPC and was Mr. David B: Schwartz Page 2 established following an initial contract awarded through Competitive bidding. You note that the Institute won an additional contract for continuing work during the past year. During her service on DDPC, Ms. Spruill had no 'connections with funding decisions regarding the Institute, and she specifically was not a member ,of the proposal review committee which selected the Institute's proposal for funding. DDPC is created by a federal statute. However, it is tor each state to decide whether or not to establish such a counoit. . n ` a given state, such a council is created by the goverrid ?'`s executive order or by statute. The council must be establisd on a state level to exist. Each such council has a "designated agency" per the statute. In Pennsylvania, that designated agcy is the Department of Public Welfare (DPW). However, DPW '-5n1y oversees the work of DDPC- insofar as ensuring compliance` -t'h state regulations in giving out funds. DPW cannot - reject something that DDPC wants to do unless it is against a regulation or law, and DPW has never done so. DDPC is fully federally funded, although the funds 4 allocated under the Governor's budget to DPW where DDPC. maitii.s an account. The staff are Commonwealth employees. The Execive Director of DDPC is appointed by the Governor, and the Goverior can remove the Executive Director, and /or all members of ` Dt5te, and ` replace them if he chooses to do so. Technically, the Executive Director reports to the Governor, and a mechanism exists for the Governor to review the activities of O'PC, . although the Governor does not utilize this mechanism. The federal government regulates DDPC. Every three years, DDPC must come up with a 3 -year state plan which must be approved by the Administration of Developmental Disabilities (ADD), which is within the - Department of Health and Human Services In Washington, If ADD does not approve the 3 -year plan, the state does_ -.not .get . the federal funds for the council. ADD also requires, regular -fiscal reports and performs program reviews periodically. You . _s=tate . that this federal oversight is to make sure that DDPC is acting in accordance with the federal act which created it You have generally . explained the purpose of DDPC as assisting state, public and_-private organizations to improve the Situation of people with developmental disabilities to get the services they, need to enable them to achieve their maximum potential. You state that DDPC serves as a system - Advocate. DDPC, that Requests for Proposals (RFP's) -bhceuld be issued. These RfP's are for contracts for providing °services. The R 'P'' s may , for example, be for demonstrating ' near approaches in human services, such as employment for the disabled; programs Mr. David B. Schwartz Page 3 for children with special needs; and educational aiproaches addressing underlying values which would include seminars. Them is also a grant mechanism, but it is very small and is only for conducting conferences. All RFP's developed by DDPC are issued through the DPW using its usual mechanisms. This involves review and approval by the Secretary of DPW, the Comptroller's office, the Legal Department, the Attorney General and any other necessary offices. When proposals are received under the RFP, they are reviewed by a committee constituted following DPW guidelines and additional DDPC .guidelines to protect against conflicts of interest. representative of the DPW Comptroller's office i$ a non- voting' member of this committee. The committee which reviews the RFP may have council members on it as long as they are in the minority. The remainder of the committee is comprised of impartial people from other= walks of life. However, DDPC determines who will be on the committee. While DDPC drafts the RFP and chooses who will be on the committee, DDPC has no direct control or influence over the selection of the proposal or award of the contract. The contracts are between DPW and the providers of services. Ms. Spruill was not involved in the committee that decided to issue the RFP five years ago which established the Institute, nor was she on the review committe. that selected the proposal. More recently, Ms. Spruill was not a member of the committee that developed the RFP which resulted in the award /renewal of the contract to the Institute in October 1990. As a member of DDPC, she would have had access to the draft RFP, although you do riot know whether she actually saw it or not. Secondly, she did not serve as a member of the review committee for the RFP. You note that under this RFP, only one proposal was This resulted' in funding for the continuing work of the Instit ate.. Furthermore, because the current Director of the- IIs°titiite had not yet announced his resignation at the time of t* e = cortt , ac : award, you state your belief that Ms. Spruill could n'ot have haei an intent to apply for a position there until the vac �aercyl' wah' recently announced. If selected for the positiohyv M.Sx. Sp i1 .' has announced her intent to resign from DDPC. Based upon all of these facts, you_ request tte' advie'e of this Commission as to whether Ms. Spruill may accept the position the Public Executive Director a f the Institute: within the parameters of Emp oyes Ethics - ., Law, 65-P.S. S401 „a.m. Discussion: As. a member' the Dievelopmental Disab'ilities` Planning Council . (DDPC)„ - Lucy C : not .a public official as that term is defined ' under- the- E£hics Law, and hence she- is Mr. David B. Schwartz P &qe 4 not subject to the provisions of that law other than :Sections 3(b) and 3(c) which apply to everyone. The DDPC is primarily -a federal creation. Not only was DDPC created by federal stat4 e but it is fully funded with federal funds Furthermore, DDPC 4.s Substantially regulated by federal agencies and 3nust meet federal requirements with regard to its 3 -year plans and its i:a cal reports and programs. Given these facts, the members of DDPC would not be "public officials" as defined under the Ethics 744w, and hence they would not be subject to those provisions of the Ethics taw which apply only to public officials /public ,employees. Therefore, the Ethics Law would not restrict Ms, Spruill faith regard to `accepting the position of Executive Director wit She tommonwealth'Institute. Section 3 ( .� b) and 3(c) of the Ethics Law provide in part that 410 person shall offer to a public .official /employee anything of monetary value and no public official /employee shall solicit 9r `-accept any thing of monetary value based upon the understanl that the vote, official action, or judgement of the public official/employee would be influenced thereby. Reference is made tb 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. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any c10er statute, code, ordinance, regulation or other code of comet, other than the Ethics Law, has not considered in 'that . ,#y do not involve an interpretation of the Ethics Law. Conclusion: - As a Member of the Commonwealth of Pennly1V4ilia, Developmental Disabilities Planning Council, . Ms. Lucy C. teloXigal is not a public official as that term is defined in the w #Jiics Law, " and she is not subject to the provisions of the Ethi4*s r ,aw other than Sections 3(b) and 3(c) which apply to everyone. -The Ethics Law would not restrict Ms. Spruill with regard tto -her accepting the position of Executive Director of th the Commonwealth Institute. Lastly, the propriety of VI,e-Atroposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct .in ' any other .civil or crimi proceeding, providing the requestor has,disclosed.truthful3:yr.all the material facts and ..committed the ects complained cof in reliance " on the Advice' given . This ` letter Y is e x public x and will '. be made<,avai7 a as such. Mr. David B. Schwartz Page 5 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 52.12. Sincerely, Vincent `J. Dopko, Chief Counsel