HomeMy WebLinkAbout03-562 EichenlaubMartha C. Eichenlaub
402 Vermont Avenue
Erie, PA 16505
Dear Ms. Eichenlaub:
ADVICE OF COUNSEL
June 27, 2003
03 -562
Re: Former Public Employee; Section 1103(g); Psychologist; Pennsylvania
Department of Corrections; Contract; Support Services
This responds to your letters of May 19 and 23, 2003, by which you requested
advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act"), 65
Ha.GS. § 1101 et seq., presents any restrictions upon employment of a Psychologist
following termination of service with the Pennsylvania Department of Corrections
(PDOC).
Facts: You retired from PDOC on May 23, 2003, as a Licensed Psychologist.
oouu proffer your job duties as including individual therapy, group therapy, Long
Distance Dads, Long Timers, and parole psychologicals. Your job description together
with the classification specifications for a Psychologist have been obtained which are
incorporated by reference. The PDOC seeks to contract with you to provide support
services to institutions that are running a program that you developed. There is an
issue as to whether PDOC may contract with you prior to you being retired for one year.
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.
Eichenlaub, 03 -562
June 27, 2003
Page 2
In the former capacity as a Licensed Psychologist for the PDOC, 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 your job description and the classification specification for a
Psychologist, 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.
Parenthetically, we are aware of Shields, Advice 83 -582, which is distinguishable based
upon its facts that involved duties and responsibilities that were limited to performing
ministerial functions.
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:
§ 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.
Eichenlaub, 03 -562
June 27, 2003
Page 3
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.
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 were associated upon termination of
public service is PDOC in its entirety. Therefore, for the first year after termination of
service with PDOC, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of "persons" before PDOC.
As to the question of whether PDOC and you may contract whereby you would
provide support services to institutions (presumably within PDOC) that use a program
you developed, the Commission held in Confidential Opinion 03 -005, supra, that a
former public official /public employee may not contract with his former governmental
body within the one year period after termination of services to provide
contract /consulting services. The Commission opined as follows:
Eichenlaub, 03 -562
June 27, 2003
Page 4
We must conclude that Section 3(g) would prohibit you, as a former
public employee, from entering into a contract for consulting services
between yourself and your former governmental body within one year of
termination of service. The contemplated activity is expressly prohibited
by Section 3(g) of Act 9 of 1989.
* **
[T]he application of Section 3(g) is not unduly harsh in that the
Ethics Law does not prohibit the rehiring of the former public employee to
perform those services rov�ided that a true public employment
relationship exists. It does provide a mechanism in many situations to
handle such matters without transgressing either the literal requirements
or spirit of Section 3(g). For the foregoing reasons, we conclude that
Section 3(g) of Act 9 of 1989 prohibits the proposed consulting services
contract ... .
Id at 7,8.
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 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 Licensed Psychologist with the
Pennsylvania Department of Corrections, 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 the Pennsylvania Department of
Corrections, you became a "former public employee" subject to Section 1103(g) of the
Ethics Act. The former governmental body is the Pennsylvania Department of
Corrections in its entirety.
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.
Eichenlaub, 03 -562
June 27, 2003
Page 5
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