HomeMy WebLinkAbout04-537 KhokherSaeed A. Khokher, V.M.D., M.S., Ph.D.
31 Drexel Place
New Cumberland, PA 17070
Dear Mr. Khokher:
ADVICE OF COUNSEL
April 30, 2004
04 -537
Re: Former Public Employee; Section 1103(g); Coordinator of Food and Nutrition
Programs; Pennsylvania Department of Education.
This responds to your letter of March 31, 2004, 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 Food and
Nutrition Programs Coordinator following termination of service with the Pennsylvania
Department of Education, Division of Food and Nutrition.
Facts: You are currently employed as a Food and Nutrition Programs Coordinator
with the Department of Education ( "DOE "), Division of Food and Nutrition. You have
submitted a copy of your job description, which is incorporated herein by reference.
Your job responsibilities include reviewing and approving contracts between
schools and food service management companies. Specifically, review the
contracts to ensure that they are in compliance with state and Federal regulations. If
deficiencies exist in the contracts, you work with schools to bring the contracts into
compliance with the regulations and then approve them. Prior to submitting the
contracts to you, schools prepare Requests for Proposals ( "RFP's ") or Invitations for
Bids ( "IFB's "), advertise them in the newspapers, receive proposals or bids from food
service management companies, review them, select the successful bidder, obtain
board approval, and grant the contract to a food service management company by
signing the contract with the successful bidder. You have no involvement in the
selection of the successful bidder.
You plan to retire at the close of business on April 2, 2004. Various schools have
requested that you provide them with consultant services in the preparation of RFP's/
IFB's, and advise them on state and Federal regulations and other activities which do
not involve your representing them before DOE.
Khokher 04 -537
April 30, 2004
Page 2
You ask whether you may provide such consulting services to schools 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.
As a Food and Nutrition Programs Coordinator with the Department of Education
( "DOE "), Division of Food and Nutrition, 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:
§ 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.
Khokher 04 -537
April 30, 2004
Page 3
"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
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.
Flowever, 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 90006; Sharp, Opinion 90- 009 -R.
The governmental body with which you would be associated upon termination of
public service is DOE in its entirety including, but not limited to, the Division of Food and
Nutrition. Therefore, for the first year after termination of service with DOE, Section
Khokher 04 -537
April 30, 2004
Page 4
1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before
DOE.
Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are
advised that although the Ethics Act would not preclude you from providing the above
described consulting services to schools, it would restrict your conduct in your new
position to the extent that such conduct would constitute prohibited "representation"
before DOE during the one year period, as delineated above. The Commission
enumerated several examples of prohibited "representation" in Ledebur, Opinion 95 -007,
which involved a Bureau Director for DOE who terminated service with DOE and
accepted employment as a Director of Family Resource Networks for the Philadelphia
School District. Such examples included submitting bid or contract proposals to the
former governmental body containing the former public official's name; listing the former
public official's name as the person who will provide technical assistance on a proposal,
document, or bid, submitted to or reviewed by the former governmental body; and
identifying the former public official on documents submitted to the former governmental
body, which documents were prepared with the assistance of the former public official.
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: As a Food and Nutrition Programs Coordinator with the Department
of Education ( "DOE "), Division of Food and Nutrition, 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 would become a
"former public employee" subject to Section 1103(g) of the Ethics Act. The former
governmental body is DOE in its entirety including, but not limited to, the Division of
Food and Nutrition.
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.
Khokher 04 -537
April 30, 2004
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