HomeMy WebLinkAbout03-602 RogoskyThomas A. Rogosky
418 Cascade Drive
Mechanicsburg, PA 17055
ADVICE OF COUNSEL
November 20, 2003
03 -602
Re: Former Public Employee; Director of the Bureau of Community Corrections;
Department of Corrections; Section 1103(g).
Dear Mr. Rogosky:
This responds to your letter of October 16, 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 Director of the
Bureau of Community Corrections following termination of service with the Department
of Corrections.
Facts: You were formerly employed as the Director of the Bureau of Community
fictions for the Department of Corrections. On June 30, 2003, you retired from the
Commonwealth after 31 years of service. You were employed by the Department of
Corrections for your entire Commonwealth career.
The chain of command in your department was as follows: (1) Secretary of
Corrections; (2) Executive Deputy Secretary; (3) Deputy Secretary for Specialized
Facilities and Services; and (4) you. You have submitted a copy of your job description,
and a copy of an organization chart for the Bureau of Community Corrections, which
documents are incorporated herein by reference.
An integral part of the Bureau of Community Corrections is the utilization of
private Contract Facilities to provide service to inmates returning to the community.
You state that a Contract Facility is a residential community corrections center which
houses inmates returning to home, family and community after a period of incarceration.
All Contract Facilities receive contracts under the provisions of the Commonwealth's
standard "Request for Proposals" process.
You state that no contractors receive grants or loans or promises of money as an
inducement to operate in Pennsylvania. You further state that all awards are a result of
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November 20, 2003
Page 2
a competitive bidding process. No recruiting of companies to provide such services
occurs.
You state that while you participated in evaluation of committees to score
proposals, your vote was equal to the other two or more members of each evaluation
committee. You state that you had no contract awarding authority or signature authority
on any contract. Final recommendations were submitted by the Director of the Bureau
of Administrative Services to the Secretary of Corrections for approval, based upon the
scores including technical, cost and SERB scores. You note that technical scores are
determined by combining the individual scores of the evaluation committees.
You pose the following questions:
1. Whether you would be considered an executive -level state employee subject to
the restrictions of Section 11030) of the Ethics Act; and
2. Whether there is a restriction on being employed by a company operating a
Contract Facility or a Contract Facility as long as you do not represent the Contractor
before the Department of Corrections.
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 the Director of the Bureau of Community Corrections for
the Department of Corrections, 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).
Rogosky 03 -602
November 20, 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-hiimself, 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
Rogosky 03 -602
November 20, 2003
Page 4
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 the Department of Corrections in its entirety including, but not limited
to, the Bureau of Community Corrections. Therefore, for the first year after termination
of service with the Department of Corrections, Section 1103(g) of the Ethics Act would
apply and restrict "representation" of "persons" before the Department of Corrections.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, your two
specific inquiries shall now be addressed.
With regard to your first inquiry, Section 11030) relating to the two year restriction
upon former executive -level employees would not apply to you because as a Director of
the Bureau of Community Corrections for the Department of Corrections, you would not
be considered an executive -level State employee as that term is defined in the Ethics
Act.
With regard to your second inquiry, you are advised that although the Ethics Act
would not preclude you from accepting employment with a company operating a
Contract Facility or a Contract Facility following your retirement from Commonwealth
service, it would restrict your conduct in your new position to the extent that such
conduct would constitute prohibited representation before the Department of
Corrections.
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. Specifically not addressed is the Governor's
Code of Conduct.
Conclusion: In the former capacity as the Director of the Bureau of Community
Corrections for the 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 Department of Corrections,
you became a "Former public employee" subject to Section 1103(g) of the Ethics Act.
Rogosky 03 -602
November 20, 2003
Page 5
The former governmental body is the Department of Corrections in its entirety including,
but not limited to, the Bureau of Community Corrections.
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