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HomeMy WebLinkAbout03-597 ZatkoMatthew R. Zatko, Esquire 202 East Union Street Somerset, PA 15501 ADVICE OF COUNSEL October 22, 2003 03 -597 Re: Public Employee; Vocational Rehabilitation Pre - Vocational Instructor; Hiram G. Andrews Center; Office of Vocational Rehabilitation; Department of Labor and Industry; Section 1103(g). Dear Mr. Zatko: This responds to your letter received on September 17, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act (the "Ethics Act "), 65 Pa.C.S. § 1101 et seq. presents any restrictions upon employment of a Vocational Rehabilitation Pre Vocational Instructor following termination of service with the Office of Vocational Rehabilitation, Department of Labor and Industry. Facts: On behalf of Tim Brant 'Brant "), a former Vocational Rehabilitation Pre - o0 cafional Instructor at the Hiram G. Andrews Center in the Office of Vocational Rehabilitation, Department of Labor and Industry, you seek an advisory from the State Ethics Commission. You have submitted a copy of a job description for Brant's former position, which job description is incorporated herein by reference. Per the job description, Brant's former job duties included, but were not limited to, the following: making decisions relative to providing direction and coordination of communications to other instructors and staff, and providing rehabilitation /instruction services to students enrolled in the Driver Education Program; assisting where necessary in preparing and adapting all instructional activities and materials, and in determining and preparing Agency Purchase Requests for supplies and equipment needed for instruction; helping students acquire the knowledge, skills, and attitudes for safe and efficient operation and care of motor vehicles and equipment; enabling students to relate those natural and civil laws which determine and regulate the operation of motor vehicles to safe driving habits; preparing students for vocations and activities involving the use of a motor vehicle; developing informed, conscientious, and responsible citizens and members of society; Zatko /Brant 03 -597 October 22, 2003 Page 2 and objectively evaluating potential students for entrance into the Driver Education Program. You state that Brant's role as a driving instructor was identical to the role of other teachers at the Hiram G. Andrews Center. Brant formulated lesson plans, instructed his students, and then tested his students on what they learned. In addition, Brant instructed students that the administrators enrolled in order to enable students to prepare students for occupations and activities involving the use of motor vehicles. In contrast to the administrators, Brant could evaluate potential students for entrance into the program and could schedule enrolled students for evaluations with occupational therapists, but could not control the scheduling of students whom the administration would ultimately enroll in the course. Finally, Brant could submit requests for necessary supplies, but could not control the ordering or payment of such supplies. After 11 years of teaching at the Hiram G. Andrews Center, Brant left his position to open his own business as a private instructor. In the private sector, Brant would like to teach people with disabilities to operate specially modified vehicles. In addition, Brant would like to accept work from his former employer. You ask whether Brant may accept contract work from the Hiram G. Andrews Center without transgressing the Ethics Act. 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 Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center in the Office of Vocational Rehabilitation, Department of Labor and Industry, Brant 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 jdE 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. As noted above, a determination of one's status as a "public employee" is based upon an objective test, that is, a consideration of an individual's job as set forth in his class specification and job description, rather than any duties that the individual may be presently performing. See, Phillips v. State Ethics Commission, 470 A.2d 659 (Pa. Commw. 1984). The focus is necessarily upon the position itself, and not upon the individual incumbent in the position, the variable functions of the position, or the manner in which a particular individual occupying the position may carry out those functions. Id.; Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). In that a Vocational Rehabilitation Pre - Vocational Instructor has the authority to perform functions which are beyond a ministerial nature, including but not limited to, as for example, "[assisting] where necessary . . . in determining and preparing Agency Purchase Requests for supplies and equipment needed for instruction," the necessary conclusion is that a person in such a position would be considered a "public employee" subject to the Ethics Act. Zatko /Brant 03 -597 October 22, 2003 Page 3 Because Brant in his former capacity as a Vocational Rehabilitation Pre - Vocational Instructor would be considered a "public employee," upon termination of public service, Brant 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 for 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. 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 /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. Zatko /Brant 03 -597 October 22, 2003 Page 4 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 /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 No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which Brant was associated upon termination of public service is the Department of Labor and Industry in its entirety including, but not limited to, the Office of Vocational Rehabilitation. Therefore, for the first year after termination of Brant's service with the Department of Labor and Industry, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Department of Labor and Industry. As to the specific question you have osed, you are advised that Brant may not accept contract work from the Hiram G. Andrews Center within one year of terminating service with the Department of Labor and Industry, as he would be engaging in prohibited representation before his former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Confidential Opinion, 93 -005; Long, Opinion 97- 010. 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 /employee 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. Zatko /Brant 03 -597 October 22, 2003 Page 5 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: In the former capacity as a Vocational Rehabilitation Pre - Vocational Instructor at the Hiram G. Andrews Center in the Office of Vocational Rehabilitation, Department of Labor and Industry, Brant would be considered a "public employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ("Ethics Act "). Upon termination of service with the Department of Labor and Industry, Brant became a 'former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which Brant was associated upon termination of public service is the Department of Labor and Industry in its entirety including, but not limited to, the Office of Vocational Rehabilitation. 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 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