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HomeMy WebLinkAbout04-013 BriechleMichael Briechle, Esquire 26 Public Avenue P.O. Box 126 Montrose, PA 18801 -0126 Re: Former Public Employee; Section 1103(g); Regional Area Service Manager; Office of Mental Retardation; Department of Public Welfare; Appeal of Advice. Dear Mr. Briechle: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Michael J. Healey Paul M. Henry Raquel K. Bergen DATE DECIDED: 9/21/04 DATE MAILED: 10/1/04 04 -013 This Opinion is issued in response to the appeal of Advice of Counsel, 04 -563, which was issued on June 14, 2004. I. ISSUE: Whether Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g), would preclude a former Regional Area Service Manager of the Department of Public Welfare (DPW) Office of Mental Retardation (OMR), Bureau of Community Services, from having contact or interaction with DPW regarding a training program that he plans to develop and present to an Intermediate Unit (IU) as a subcontractor under a training contract between the IU and OMR. II. FACTUAL BASIS FOR DETERMINATION: By letter dated July 13, 2004, you appealed Harfman, Advice of Counsel, 04 -563 issued June 14, 2004. The initial advisory request was submitted by the subject of this appeal, Thomas Harfman (hereinafter referred to as "Harfman "), who presented facts that may be fairly Briechle /Harfman, 04 -013 October 1, 2004 Page 2 summarized as follows. Harfman stated that as of June 25, 2004, he was retiring from employment with the Commonwealth of Pennsylvania. At all times relevant to this matter, Harfman had served as a Regional Area Service Manager for DPW's OMR, Bureau of Community Services. Harfman indicated that following retirement, he would like to provide consulting services to Intermediate Unit #11 (IU) relative to a training contract the IU had received from OMR. Harfman stated that his duties with the IU would be to develop and present training to support coordinators /case managers in County MH /MR Programs throughout the state. Harfman asked whether, pursuant to the Ethics Act, he would be permitted to provide the proposed part -time consulting services to the IU relative to the IU's training contract with OMR. Harfman submitted a copy of his job description for his position with DPW, which document was incorporated by reference in the Advice of Counsel and is likewise incorporated herein by reference. Harfman did not indicate whether he had had any involvement in his public capacity as to the contract that the IU had received from OMR. Accordingly, the Advice of Counsel that was issued to Harfman, Advice of Counsel, 04 -563, was expressly based upon the assumption that Harfman had not used the authority of his position with the Commonwealth of Pennsylvania for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. See, Harfman, Advice of Counsel, 04 -563 at 3 -4. Advice of Counsel, 04 -563 determined that as a Regional Area Service Manager for DPW's OMR, Bureau of Community Services, Harfman would be considered a "public employee" subject to the Ethics Act and that upon retiring from the Commonwealth, Harfman would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The Advice of Counsel further determined that Harfman's former governmental body would be DPW in its entirety. The Advice of Counsel set forth the restrictions of Section 1103(g), and further stated: Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that although the Ethics Act would not prohibit you from accepting a position as a consultant for I.U. #11 following your retirement from DPW, the Act would restrict your conduct in your new position to the extent that such conduct would constitute prohibited "representation" before DPW as delineated above. You state that your duties in your new position involve developing and presenting training to support coordinators /case managers in county MH /MR Programs. To the extent DPW would be involved in those county MH /MR Programs, you could not, during the one year period, have any contacts or interactions with DPW as you would necessarily run afoul of Section 1103(g) of the Ethics Act. Harfman, Advice of Counsel 04 -563 at 3 (Emphasis added). By letter dated July 13, 2004, you, as counsel for Harfman, appealed a limited portion of Advice of Counsel, 04 -563, specifically, that portion of the above quoted paragraph that appears in bold font. In the letter of appeal, you state: The interaction of Mr. Harfman in the act of teaching and educating support coordinators from County MH /MR Programs and private entities is not the type of interaction prohibited by the Ethics Act. Mr. Harfman's interaction with the Department Briechle /Harfman, 04 -013 October 1, 2004 Page 3 of Public Welfare's Office of Mental Retardation (OMR) will be limited to receiving direction as to the proposed content of the training OMR is requesting. In fact such a restriction would prohibit the efficient and effective administration of our state government. Enclosed for your review is a "Sample Contract for Consultants" with the I.U. It specifically restricts the interaction of the consultant with the Department of Public Welfare. Acquiring information from DPW employees in an effort to teach other non -DPW employees is not the type of conduct that the Ethics Act was intended to prohibit. Briechle Letter of July 13, 2004, at 2). The submitted "Sample Contract for Consultants" with the IU is drafted such that the parties to the contract include the IU and the consultant, but not DPW. The Sample Contract for Consultants provides, in pertinent part, as follows: The contracted consultant will provide professional development services for IU 11 that include: • Development of written documents to be used for training supports coordinators and their supervisors. • Training sessions on topics including person centered planning and the individual support plan process for supports coordinators and their supervisors. • Group facilitation for supports coordinators and their supervisors. The contracted consultant will not engage in: • Lobbying on behalf of IU 11 or the Department of Public Welfare[.] • Negotiations on behalf of IU 11 or the Department of Public Welfare. • Submitting or reviewing bids or contracts on behalf of IU 11 or the Department of Public Welfare[.] The contracted consultant does not officially represent IU 11 or the Department of Public Welfare in any professional development activities. Sample Contract for Consultants, paragraphs 2 -4. By letter dated July 30, 2004, you were notified of the date, time and location of the public meeting at which your request would be considered. III. 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 that the requestor has submitted. In issuing the advisory based upon the facts that the requestor has submitted, this Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It Briechle /Harfman, 04 -013 October 1, 2004 Page 4 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. The instant appeal involves the post - employment restrictions of Section 1103(g) of the Ethics Act. We note generally that when a public employee leaves his public position to join the private sector, his interests are no longer naturally aligned with those of his former governmental body. Rather, his loyalty is to himself, his private employer, or client(s). Harfman has retired from his former position with DPW, and now as a private consultant, he seeks to subcontract with the IU under a training contract between the IU and OMR. Under such a scenario, it would only be natural for Harfman's loyalty to be to himself and the IU. In considering the merits of your appeal, we shall limit our analysis to the narrow issue that you have raised as to the particular language of Advice of Counsel, 04 -563 that you have appealed. Parenthetically, we note that you do not dispute the fact as a former Regional Area Service Manager for DPW's OMR, Bureau of Community Services, Harfman is a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. You do not contest that Harfman's former governmental body is DPW in its entirety. We further note that Advice of Counsel, 04 -563 accurately apprised you of the nature of the Section 1103(g) restrictions and of certain important Commission precedents pertaining to those Sections. Accordingly, we adopt and incorporate herein by reference the Advice's recitation of the Section 1103(g) restrictions with the exception of the particular language that you have appealed. Essentially, what you have appealed is the determination of the Advice of Counsel that if Harfman would enter into the proposed subcontract with the IU, any related contact or interaction between Harfman and DPW would constitute "representation" prohibited by Section 1103(g) of the Ethics Act. As noted in Advice of Counsel, 04 -563, Section 1103(g) of the Ethics Act provides as follows: § 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 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 Briechle /Harfman, 04 -013 October 1, 2004 Page 5 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 (Emphasis added). The term "person" is very broadly defined to include the former public employee himself, Confidential Opinion, 93 -005, as well as a governmental body such as the IU. See, 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. The arguments that you have raised as to whether particular types of interaction between Harfman and DPW would be prohibited by Section 1103(g) hinge upon the meaning of the word "represent." We note that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly," 1 Pa.C.S. § 1921(a), and " ... the General Assembly intends to favor the public interest as against any private interest," 1 Pa.C.S. § 1922(5). Additionally, to the extent words of the Ethics Act are not explicit, we may consider the factors set forth at 1 Pa.C.S. § 1921(c), which include, inter alia, the occasion and necessity for the Ethics Act, the circumstances under which the Ethics Act was enacted, the mischief it is to remedy, the object it is to attain, and the consequences of a particular interpretation. In promulgating the restrictions now embodied in Section 1103(g) of the Ethics Act, it was the General Assembly's intention to protect the public trust, so that a former public official or public employee could not use his prior association with the public sector, officials or employees to secure treatment or benefits for himself or a new employer that might only be obtainable because of his association with his former governmental body. See, Long, Opinion 97 -010; Shay, Opinion 91 -012. In order to accomplish its purpose, the General Assembly promulgated a very broad definition of the term "represent." Indeed, it would be difficult to imagine a broader definition than, To act on behalf of any other person in any activity ...." 65 Pa.C.S. § 1102. Finally, we are mindful that "[t]he Ethics Act, being remedial legislation, is to be liberally construed." Phillips v. State Ethics Commission, 470 A.2d 659, 661 (Pa. Cmwlth. 1984) (Citation omitted). The factual scenario that you have submitted is not complex, and it falls squarely within the prohibitions of Section 1103(g). Harfman recently retired from DPW. Now he wants to get a private consulting contract with the IU. In order to perform the private consulting contract with the IU, he would need to interact with his former governmental body, DPW. This is a classic example of the type of revolving -door conduct that Section 1103(g) was intended to prohibit. Thus, we agree with Advice of Counsel, 04 -563 to the extent it holds that during the one -year period of applicability of Section 1103(g), Harfman would be prohibited from having contact or interaction with DPW that would involve acting on behalf of himself or the IU as to matter(s) relating to the IU's training contract with OMR. Harfman would certainly be prohibited by Section 1103(g) from engaging in contact or interaction with DPW that could result in or impact a related exercise of discretion by DPW, such as with regard to the content of the training program, the adequacy of the training program, or issues as to Harfman's fulfillment of obligations under his subcontract with the IU or the requirements of Briechle /Harfman, 04 -013 October 1, 2004 Page 6 DPW. We reject your assertions to the contrary. You contend that the proposed subcontract between Harfman and the IU "specifically restricts the interaction of the consultant with the Department of Public Welfare." (Briechle letter of July 13, 2004, at 2). We have reviewed the proposed subcontract, and our concerns are not assuaged. What the parties consider to be "official representation" for their purposes may not be "representation" as the Ethics Act defines it to be. Moreover, contractual provisions are no guarantee that representation as prohibited by the Ethics Act will not, in fact, occur. You assert: "Mr. Harfman's interaction with the Department of Public Welfare's Office of Mental Retardation (OMR) will be limited to receiving direction as to the proposed content of the training OMR is requesting." (Briechle Letter of July 13, 2004, at 2). In this assertion, you make contradictory representations. First, you acknowledge that Harfman would "interact" with DPW. To "interact" is to act upon one another." MERRIAM - WEBSTER ONLINE DICTIONARY (2004). Yet you also make the contradictory assertion that Harfman would only be "receiving direction," as if he would be a mere passive recipient of direction and would say nothing at all. It seems probable that Harfman would not be a mere passive recipient of direction but would have some opportunity to respond, discuss, question, dispute, provide input or offer commentary as to the program or the direction given. Such "interaction" would constitute prohibited representation contrary to Section 1103(g). We would further note that at any point in the process, Harfman could be placed in a position adversarial to DPW by having to defend his program or his performance of contractual obligations. We nevertheless determine that the Advice of Counsel went too far in stating that to the extent DPW would be involved in the county MH /MR programs, Harfman could not have any contacts with DPW as he would necessarily run afoul of Section 1103(g) of the Ethics Act. See, Harfman, Advice of Counsel 04 -563 at 3. Section 1103(g) of the Ethics Act would not restrict Harfman from having contact with DPW that would not constitute "representation" of a "person" for promised or actual compensation. For example, Section 1103(g) of the Ethics Act would not restrict or prohibit Harfman from contacting DPW solely to request copies of DPW regulations, brochures, or other publicly - available materials involving the requirements for this type of training program. Based upon the above analysis, we deny the appeal and affirm Harfman, Advice of Counsel 04 -563 as modified. Lastly, the propriety of the proposed course of conduct has only been addressed under the Ethics Act. IV. CONCLUSION: Following retirement from the Commonwealth of Pennsylvania, a former Regional Area Service Manager of the Department of Public Welfare (DPW) Office of Mental Retardation (OMR), Bureau of Community Services, would be considered a former public employee subject to Section 1103(g) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1103(g). Pursuant to Section 1103(g) of the Ethics Act, the former DPW public employee would be prohibited from having contact or interaction with DPW that would involve acting on behalf of himself or an Intermediate Unit (IU) as to matter(s) relating to his subcontract with the IU under a training contract between the IU and OMR. The former DPW public employee would be prohibited by Section 1103(g) of the Ethics Act from engaging in contact or interaction with DPW that could result in or impact a related exercise of discretion by DPW, such as with regard to the content of the Briechle /Harfman, 04 -013 October 1, 2004 Page 7 training program, the adequacy of the training program, or issues as to his fulfillment of obligations under his subcontract with the IU or the requirements of DPW. Section 1103(g) of the Ethics Act would not restrict the former DPW public employee from having contact with DPW that would not constitute "representation" of a "person" for promised or actual compensation. Advice of Counsel 04 -563 is affirmed as modified. Act. The propriety of the proposed conduct has only been addressed under the Ethics Pursuant to Section 1107(10), the person who acts in good faith on this Opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair