Loading...
HomeMy WebLinkAbout95-559 MontoneEugene J. Montone 1105 Creek Road Sandy Lake, PA 16145 Dear Mr. Montone: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 2, 1995 Re: Former Public Employee; Section 3 Children and Youth Services; Services Corporation. 95 -559 (g) ; Administrator EV; County Coordinator; Psychological This responds to your letter of April 11, 1995, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of an Administrator - IV following termination of service with the Mercer County Children and Youth Services. Facts: You were employed by Mercer County Children and Youth Services for twenty years. Before you retired on February 17, 1995, you were a Children and Youth Services Administrator IV, a county civil service position that required approval from the Pennsylvania Department of Public Welfare (DPW), Office of Children and Youth and the Pennsylvania Civil Service Commission. An Administrator IV is directly or indirectly responsible for all Mercer County children's programs. The Administrator proposes or approves grants written by public and private service providers and is responsible for administering a budget of about three million dollars. The Administrator prepares an annual plan that integrates county services with existing or proposed public and private sector services. On February 15, 1995, DPW notified you that the Child Abuse and Family Service (CAFS) Grant, which you wrote with Robert Craig, Ph.D., was approved for funding effective April 1, 1995. You state you announced your retirement one year prior to writing the CAFS grant. The .CAFS grant identified the Director of Craig Psychological, Inc., as the service provider. DPW .and the Mercer County Commissioners approved Dr. Craig and his agency and an announcement was .published in the local newspaper. Having interviewed several applicants for the position of "part -time coordinatar," Dr. Craig eventually offered you the position, Montone, Eugene J., 95 -559 May 2, 1995 Page 2 because of your extensive experience in working with physically, sexually, and emotionally abused children and families. You also state that Dr. Craig is willing to say that the grant was not written with you in mind as the sole candidate for this position. Dr. Craig told you that you were the candidate most qualified for the position. You believe denying you employment working with Children in Mercer County is grossly unfair. The director of Children and Youth Services is required to work closely with all children service providers in the county. You state - further that if being h4.red as part -time coordinator of the CAFS program is a conflict under the Ethics Law, then you would not be able to work with any children's service agency. You conclude that you hope this is not 'the case. You assume, since there has been no official complaint, that you are not in violation until you hear officially from the Commission. You therefore have accepted the part -time position as coordinator. You seek advice from the Commission under the Ethics Law concerning the employment as outlined above. Discussion: As an Administrator IV for Mercer County Children and Youth Services, you were considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. §402; 51 Pa. Code §11.1: This conclusion is based upon the job description,, which . when reviewed on an objective basis, dearly early that the power exists to take or recommend official aet on. of a non- ministerial nature with respect to aoaa.trac procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other aativities the economic, impact is greater than de minimis'on the ireterests of another person. Section 3 (a) of the Ethics Law provides Section 3. Restricted Activities (a) No public official or public employee shall engage in conduct that constitutes a conflict of' interest 65 P.S. §403 (a) The term conflict is defined:. Section, 2. 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 Montone, Eugene J., 95 -559 May 2, 1995 Page 3 65 P.S. $402. 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. "Conflict" or "conflict of interest" doea 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. Under Section 3(a) of the Ethics Law, a public official /employee may not use the authority of office for the advancement of his own pecuniary benefit or for that of a business with which he is associated. Pancoe, Opinion 89 -011. Upon termination of public service, you became a "former public employee" subject to Section 3(g) of the 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 Children and Youth Services 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 sssc : i.. ,ted:.. * The governmental body within State government or a political subdivision Montone, Eugene J., 95 -559 May 2, 1995 Page 4 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 instants matter, we must conclude that the governmental body with which you were associated upon termination of public service would be Mercer County. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the DPW was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, 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 Senate as his former governmental body. Therefore, within the first year after termination of service with Mercer County Children and Youth Services, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis Mercer County. 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 of 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: 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..." Legislative 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 Pa. C.S.A. §1901, it is clear that the gover±mental''body with. ierhu.c# yeu were associated is Mercer County. Turning now to the scope of the restrictions under Section Montone, Eugene J., 95 -559 May 2, 1995 Page 5 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, 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 person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a sew employer, treatment or benefits that may be obtainable only .because of his association with his former governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. 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. The Commission, in. Ponovich, 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 by 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 Montone, Eugene J., 95 -559 May 2, 1995 Page 6 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. In Shay, Opinion 91 -012, the Commission held that Section 3(g) would prohibit 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 pertained to a contract which existed prior to termination of public service. Therefore, within the first year after 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 Mercer County. However, you may not be identified on documents submitted to the county. You may also counsel any person regarding that person's appearance before Mercer County. Qnce again, however, the activity in this respect should not be revealed to the county. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the county to secure information 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. 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. In Confidential Opinion 93 -005, the Commission held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. Furthermore, 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 solicitor accept anything 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 been or will be any. transgression thereof but merely to provide a complete response to the question presented. MthitOne, Eugene J., 95 -559 May 2, 1995 Page 7 From your letter, it is not clear what duties or responsibilities a "part -time coordinator" for Craig Psychological, Inc., would have. The. Ethics Law would prohibit you from "representing," as described above, Craig Psychological, Inc. in . front of Mercer County or the department in which you formerly worked. Provided that you do not "represent" your new employer before your former governmental body, the Ethics Law would not prohibit you from private employment following your public service. You stated in your letter that you assume you would not be in violation of the Ethics Law unless you were notified officially by the Ethics Commission. You already have been notified that if you proceed to such employment prior to receiving this Advice, that you would do so at your own risk. 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 an Administrator IV, you were considered a "public employee" as defined in the Ethics Law. 'Upon termination of service with Mercet County Children and Youth Services, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is Mercer County. 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, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. 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 criminal 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 made available as 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 fomnal - Opinikan will be issued by the Commission. Montane, Eugene J., 95 -559 May 2, 1995 Page 8 Aay such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa. Code 513.2(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 fifteen (15) days may result in the dismissal of the appeal. Vincent Do ko Chief Counsel