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HomeMy WebLinkAbout92-623Dear Mr: Schwartz: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 r HARAISBURG, PA t7108-1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 3, 1992 Mx. David B. Schw 92 -623 Executive Directq The 'Developmental Disabilities Planning Council Room 569 Forum Building Conndnwealth Avenue Harrisburg, PA 17120 Re: Conflict, Public Official /Employee, Council Member, Developmental Disabilities Planning: Council, Subsequent Employment with Organization Funded by Council, Member's Participation as Member of Proposal Review Committee in Selecting Organization's Proposal': Prior to Employment Opportunity. This responds to your letter of July 22, 1992, 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 the Developmental Disabilities. Planning Council (DDPC) from applying for an employment position with an organization funded by the DDPC, w1}ere the Member participated as a Member of the Proposal Review Committee which selected this organization's proposal prior to the employment opportunity. Facts: As Executive Diiector of the Developmental Disabilities Planning,.Council (DDPC) you request an advisory on behalf of Lucy C. -Spruill,. a Member Hof, : DDPC, with regard to her applying for a position with an organization funded by DDPC. Ms. Spruill was appointed by the Governor to the uncompensated position of Member of DDPC in January, 1990. In her private capacity, Ms. Spruill serves as Administrative Supervisor for the Roselia Center in Pittsburgh. Ms. Spruill is applying for the ,position of, Collective Advocacy Coprdinator with Options, Inc., of Bordentow i, New Jersey. Kr. David B. Schwartz September 3, 1992 Page 2'. • The Collective Advocacy Coordination project won a contract through competitive . bidding following the issuance of a Request for Proposals by DDPC. The initial contract started on October 1, 1991. You indicate that the organization maintains a Pennsylvania office for this contract. Xou reference prior Advice No. 91 -540 which was issued in response to your previous request regarding Ms. Spruill's interviewing for a different Council- funded position. You indicate that she did not take that position. You state that ". . . all of the conditions from that instance to this one are the same, save one The difference in this cafe is that Ms. Spruill was a member of the Proposal Review Committee which' selected this proposal." (Letter of July 22, 1992 at 1-2). You state that the proposal which was selected by the Committee and funded by the Council called for a specific staff member + 'in this position, who Served n it but who has suddenly resigned and moved out of state. You feel that it is clear that there was:no'''"'%nterest or connection between Ms. Spruill and Options, Inc., at the time of the propQSal selection. You. state that the question' of whether her service' on the selection committee in June, 19 would bar her from accepting a position now 'is not clear to you. You have advised Ms. Spruill that" she would need to receive an advisory from this Commission prior to accepting the position. You further indicate that if she does accept the position, she would tender her resignation as a Council Member. You further state that Robert Garrett, a former Member of the Council,' who serves as Director of Econmm `Development for Union County, has been asked it he 'would be Willing to consider serving as ° a part -time paid consultant under this projedt• You state your presumption that he was also a Member OT the original proposal selection committee this advisory wotild' relate to his situation as weil'. , _ .. L. To the extent you have represented that the conditions a plying t o th inquiry are identical to. tZ qse s.et forth in Advice 54Q, ''the fac ual reci of Advice' 51-:54 is incorporated herein by reference. ' " facts wllic ,' you previously submitted rec aid1ng DDPC ' are repeated TDPC is created by. a federal statute. However, it' is for each state to decide ti61i4i}ier . or' not" to `establish .'sucfh a council. rii ' "iven state," ttn such a c0cil is created by the ' ' rnor's executive order. or "by, t9 T�iti . must' be est b� o a °ate � co�uiti3, a � � ". Sh ��. r. 'l 'to exist. ' Each ' SiAla o f 41,1` ]has, a "designated_ agency"' ' ier ' 4e s ta�tut • In s._ • Mr. David B. Schwartz September 3, 1992 Page 3 Pennsylvania, that designated agency is the Department of Public Welfare (DPW). However, DPW only oversees the work of DDPC insofar as ensuring compliance with 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 are allocated under the Governor's budget to DPW where DDPC maintains an account. - The staff are Commonwealth employees. The Executive Director of DDPC is- appointed by the and the Governor can remove the Executive Director, and /or all members of DDPC, 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 DDPC; 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, D.C. 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 state that this fec rai oversight is to make sure that DDPC is acting in accordance with the federal Act Tah�,ich created it. 3d. You have generally explained gte purpose;.. of DDPC as assisting state, public,and private �.. organizations to improve the situation ;of 46_ people with developmental disabilities tg get :1103 the services, they need to _ enable them to achieve their maximuinn rpQtentiaJ.. You.:.state that DDPC serves as a system advocate: DDPC dete mines that` Requests for Proposals (RFD's) should be i$aued. These RFP's are for contracts for providing services. The RFP's may, for example, be for demonstrating new approaches in human services, such as employment for the disabled; programs for Mr. David B. Schwartz September 3, 1992 Page 4 children with special needs; and ,educational approaches addressing underlying values which would include seminars. There 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, Legal Department, the Attorney General and any other necessary offices. When proposals are received under the R'P, they are reviewed by a Committee constituted follOwing DPW guidelines and additional DDPC guidelines to protect against conflicts of interest. A representative of the DPW Comptroller's office is a note - vOting member of this comntitteee•. 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, bbPC 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. Schwartz, Advice No 9 - 1540 at 2 -3. Discussions It is initially noted that your inquiry regarding Mr. Garrett is a third party request which may not be addressed., within the scope of aft advisory. As you were previously advised in Advice 91 -5 4 0, as a Member Of the Developmental Disabilities Planning Council (DDPC), Lucy C. Spruill is not a public official as that term is defined under the Ethics Law, and hence she Is not subject to the provisions of that law other than Sections 3(b) and 3() which apply tb everyone. DDPC is primarily a federal Creation. Not only was DDPC created by federal Statute, but it is fully funded - vith federal funds. Furthermore, DDPC is substantially regulated by federal agencies and must meet federal requireMents With ref ard, tO its 3- year . plans and its fiscal reports . and programs. Given- these facts, the me 1bets of D O N would not be "public officials" as defined under the Ethics Law, and hence they would not be subject to those provisions of the iythies taw which apply only to public of f iCials /public employees, Mr. David B. Schwartz September 3, 1992 Page 5 Therefore, the Ethics Law would not restrict Ms. Spruill with regard to accepting the position of Collective Advocacy Coordinator with Options, Inc., conditioned upon the assumption that neither Section 3(b) nor Seeti ©n 3(c) has been or be transgressed. Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment 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. 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 Law, has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Member of the Developmental Disabilities Planning Counoil, Ms. Lucy-C. Spruill is not a public official as that term is defined in the Ethics Law, and she is not subject to the provisions of the Ethics Law other than Sections 3(b) and 3(c) which apply to everyone. The' Ethics Law would not restrict Ms. Spruill with regard her accepting the position of Collective Advac,cy Coordinator with Options, Inc., conditioned upon the assumption that neither Section 3(b) nor Section 3(c) has been or wuld be transgressed. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any proceeding initiated by the Commission, and evidence ©f 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. 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 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. Amy-such appeal must be in writing and must be received at M . David B. Schwartz September 3, 1992 Page 6 the Commission within 15 days of the date of tl4s Advice pursuant to 51 Pa. Code 52.12. ncerely, Vi cent T. Dopko Chief couns