HomeMy WebLinkAbout03-548 TaylorD. Keith Taylor
1982 Ferguson Road
Allison Park, PA 15101
ADVICE OF COUNSEL
May 14, 2003
• The job description states that I "Direct contractors in the
preparation of plans, budgets....." The only real responsibility I
have is that the preparation of budgets is to verify that they are
correct and in compliance with Department policies. The
Children & Youth staff does not specify what can be budgeted
and how and who they may employ.
• The job description uses the term "contractor ". The department
does not have contracts with these agencies. We now use
Grants for allocation of funds.
• The position I have does not sign these grants nor may I at
anytime grant a change without proper signatures.
Request letter of April 9, 2003.
Re: Former Public Employee; Section 1103(8); CCIS Coordinator; Children, Youth and
Families Program Representative I; [ e artment of Public Welfare; Office of
Children, Youth and Families; County; YWCA.
Dear Mr. Taylor:
This responds to your letters of April 9, 2003, and May 8, 2003, by which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Ha.G.S. § 1101 et seq., presents any restrictions upon employment of a Child Care
Information Services Coordinator following termination of service with the Department of
Public Welfare, Office of Children, Youth and Families.
Facts: You are currently employed as a Child Care Information Services ( "CCIS ")
Goorrcinator with the Department of Public Welfare ( "DPW "), Office of Children, Youth and
Families. Your class title is Children, Youth and Families Program Representative I. You
are assigned to the Western Region, Pittsburgh. You have submitted a job description,
which is incorporated herein by reference.
You make the following statements with respect to the job description which you
have submitted:
03 -548
Taylor, 03 -548
May 14, 2003
Page 2
You wish to resign from State employment and accept a position as a Site Director
for the North Office of the YWCA of Greater Pittsburgh, the CCIS Grantee Agency in
Allegheny County. You state that in your current position, you have been assigned to work
with the YWCA of Greater Pittsburgh. Alternatively, you would consider employment as a
Director for a CCIS that is operated by a county which holds a grant from DPW.
You state that although the position you seek would be one for which you would
work for Tess salary and benefits, it is one which you would like to hold prior to a full
retirement. You state that you would not retire from State employment for several more
years leaving your retirement benefits vested.
You pose the following inquiries.
1. Whether you may quit State employment and accept a position with a local
governmental or private non - profit agency that you have worked with in your
current position; and
2. Whether there is any specified period of time that must lapse before taking a
new job; and
3. Whether you would qualify for a waiver or exception to any restrictions that
would apply to you.
Discussion: It is initially noted that pursuant to Sections 1107(10) and 110701) 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.
As a Child Care Information Services ("CCIS") Coordinator with the Department of
Public Welfare ( "DPW "), Office of Children, Youth and Families, 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 would become 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 for one
year after he leaves that body.
65 Pa.C.S. § 1103(g) (Emphasis added).
Taylor, 03 -548
May 14, 2003
Page 3
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:
§ 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,
constitutes 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
Taylor, 03 -548
May 14, 2003
Page 4
the former governmental body or to otherwise make known to that body the representation
of, or work for the new employer.
Section 1103() 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 -0O6 Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service would be the Department of Public Welfare, ( "DPW ") in its entirety including,
but not limited to, the Office of Children, Youth and Families. Therefore, for the first year
after termination of service with DPW, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before DPW.
In response to your first and second questions, you are advised that although the
Ethics Act would not preclude you from accepting employment with a local governmental
or private non - profit agency that you have worked with in your current position upon
terminating Commonwealth employment, it would restrict your conduct in your new
position to the extent that such conduct would constitute prohibited "representation" before
DPW as delineated above. It is noted that the YWCA of Greater Pittsburgh is a CCIS
Grantee Agency. Therefore, as Site Director, you could not, for a period of one year after
terminating employment with DPW, represent the YWCA of Greater Pittsburgh before
DPW on any matter including, but not limited to: contracts with or grants to the YWCA of
Greater Pittsburgh; the adherence by the YWCA of Greater Pittsburgh to DPW's policies;
the implementation of the subsidized day care program; the provision of administrative
support; and the development of budgets for the subsidized day care program. The same
restrictions would apply if you accepted a position of CCIS Director for a county which
holds a DPW grant.
In response to your third question, the Ethics Act does not provide for waivers of the
applicability of the restrictions of Section 1103(g). The State Ethics Commission does not
have the authority to grant that which is not authorized by law. See, Richardson, Opinion
No. 93 -006; Ziegler, Opinion No. 98 -001. As the Commission stated in Ziegler, supra:
[T]his Commission is duty -bound to apply the Ethics Law as it has been
promulgated by the General Assembly. The statute provides for the Section
3(g) restrictions to apply to all former public officials /public employees. There
is no mention in the statute(7) any "variances" or "exceptions." Obviously, the
facts in any given case may be more or Tess compelling than in others, but
the law must be applied fairly and uniformly.
Id. at 6.
Similarly, in your case, the State Ethics Commission would not have the power to
grant a "waiver" of the Section 1103(g) restrictions because such are not authorized by the
Ethics Act.
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) of 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
Taylor, 03 -548
May 14, 2003
Page 5
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. Specifically not addressed herein is the applicability of the
Governor's Code of Conduct
Conclusion: As a Child Care Information Services ("CCIS") Coordinator with the
Department of Public Welfare ( "DPW "), Office of Children, Youth and Families, you would
be considered a "public employee" as defined in the Public Official and Employee Ethics
Act ( "Ethics Act "), 65 Pa.C.S. 5 1101 et seq. Upon termination of service with DPW, you
would become a "former public employee" subject to Section 1103(g) of the Ethics Act.
The former governmental body would be DPW in its entirety including, but not limited to
the Office of Children, Youth and Families.
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 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 Comm►ss►on 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