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HomeMy WebLinkAbout02-614 DornADVICE OF COUNSEL October 29, 2002 Robert Dorn Director of Curriculum and Instruction National Alliance for Pre - Engineering Programs Project Lead the Way, Inc. 747 Pierce Road Clifton Park, NY 12065 02 -614 Re: Former Public Employee; Section 1103(g); Technology Education Advisor 2; Pennsylvania Department of Education. Dear Mr. Dorn: This responds to your letter of September 30, 2002, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any restrictions upon employment of a Technology Education Advisor 2 following termination of service with the Pennsylvania Department of Education. Facts: You are a former Technology Education Advisor 2 in the Department of E ucuccation ( "DOE "), Bureau of Curriculum and Academic Services, Division of Arts, Sciences, Communications and Math, having terminated State employment on June 28, 2002. You have submitted a job description and organizational chart, which are incorporated herein by reference. You are now employed as Director of Curriculum and Training for Project Lead the Way, Inc. ( "PLTW "). PLTW is a New York not - for - profit corporation, which is exempt from taxation under the Internal Revenue Code as a charitable entity that promotes and supports pre- engineering education. PLTW's mission is to increase the number of young people who successfully pursue engineering and engineering technology programs as a four or two year college course of study. PLTW achieves its mission by providing participating middle and high schools with a complete and regularly updated student pre - engineering curriculum, access to a teacher training network and access to necessary software and equipment at greatly reduced rates. You state that PLTW works with school districts and does not solicit business from nor provide any materials directly to DOE. Dorn, 02 -614 October 29, 2002 Page 2 The curriculum and all updates to the curriculum are provided to schools free of charge by PLTW. Schools are required to participate in teacher training, which is provided through an outside national and regional training network sponsored by qualified colleges. While PLTW assists in the development and implementation of the training network, this involvement is for the purpose of assuring quality standards are met; PLTW does not itself provide the teacher training and receives no remuneration related to teacher training. Participating school districts are required to obtain certain equipment and software which are used in teaching the curriculum. In order to reduce the costs that schools incur in obtaining equipment and software, a purchasing manual offering significantly reduced prices has been developed under a competitive bid process. The equipment and software are purchased from a cooperative educational system in New York, which is wholly independent of PLTW. You state that PLTW realizes no monies from items purchased through the purchasing manual. You note that the only items offered by PLTW are a software bundle license and Fischer Technik sets. PLTW offers the software bundle license and Fischer Technik sets because it has been able to serve as a national distributor and thereby greatly reduce the cost. School districts generally are required to purchase the software bundle license and Fischer Technik sets from PLTW; however, if a school district can obtain the software bundle license or the Fischer Technik sets at a lower price than that which is offered by PLTW, the school district may purchase it elsewhere. As Director of Curriculum and Training for PLTW, your job responsibilities focus on curriculum development and the training of teachers on the curriculum, both of which do not generate any income to PLTW. You have submitted a copy of your current job description, which is incorporated herein by reference. You state that in the course of performing your job duties, you may interact with participating schools or schools interested in participating in PLTW in order to address their questions or comments regarding the curriculum. You further state that your compensation is on a straight salary basis and is in no way dependent upon the number of school districts which participate in PLTW. You maintain that your job responsibilities do not involve direct interaction with DOE nor do they involve the marketing or sale of the software or Fischer Technik sets. You opine that the purpose of the Ethics Act is to eliminate the realization of personal financial gain by public officials and employees, while allowing such person to preserve community contacts established through their occupations. After quoting Section 1103(g) of the Ethics Act and considering the legislative intent, you conclude that the Section 1103(g) restriction applies primarily to business entities with which the former employee is associated that will receive financial gain from the former employee's activities, as opposed to charitable entities. In your case, you conclude that the Ethics Act precludes representation before DOE, the governmental body which employed you. You believe that the Ethics Act would not preclude you from fulfilling your job responsibilities with PLTW for the following reasons: DOE; 1. Your role with PLTW will involve interaction with the school districts, not 2. PLTW is a charitable institution operated for the benefit of the public, not a business organization operated for private financial interest; 3. The primary role of PLTW is to provide schools with free access to a high quality pre - engineering education curriculum and a network of teacher training Dorn, 02 -614 October 29, 2002 Page 3 resources, which does not involve the financial gain element which the Act intends to address; 4. PLTW provides limited materials to participating school districts for the primary purpose of allowing the districts to implement the PLTW curriculum in the most cost - effective manner. School districts may obtain these limited materials from another source if they can do so at a lower cost; and 5. Your job responsibilities for PLTW focus on the curriculum development and teacher training, which do not result in any income to PLTW. Based upon the above submitted facts, you request guidance as to your proposed activities with PLTW as they pertain to school districts located in Pennsylvania. 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 Technology Education Advisor 2 in the Department of Education ("DOE"), Bureau of Curriculum and Academic Services, Division of Arts, Sciences, Communications and Math, 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 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 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 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: Dorn, 02 -614 October 29, 2002 Page 4 § 1102. 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. "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, 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. Dorn, 02 -614 October 29, 2002 Page 5 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 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 have been associated upon termination of public service is DOE in its entirety including, but not limited to, the Bureau of Curriculum and Academic Services, Division of Arts, Sciences, Communications and Math. Therefore, for the first year after termination of service with DOE, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before DOE. Section 1103(g) would not prohibit you from interacting with school districts in Pennsylvania, in that they would not constitute your former governmental body. As to your view that PLTW is not a business organization because it is a charitable organization operated for the benefit of the public, it is parenthetically noted that the Commission has held that corporation, including a non-profit corporation, is a "business." Soltis�, Order No. 1045 at 31 (Citing, Confidential Opinion, No. 89 -007; McConahy, pinion o. 96 -006; Confidential Opinion, No. 89 -007). 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) oft 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 Technology Education Advisor 2 in the Department of Education ("DOE"), Bureau of Curriculum and Academic Services, 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 DOE, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the DOE in its entirety including, but not limited to, the Bureau of Curriculum and Academic Services, Division of Arts, Sciences, Communications and Math. 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 Dorn, 02 -614 October 29, 2002 Page 6 conduct in any other civil or criminal proceeding, provided 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 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