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HomeMy WebLinkAbout05-548 BusheyW. Conway Bushey 1550 Scotland Avenue Chambersburg, PA 17201 ADVICE OF COUNSEL May 31, 2005 05 -548 Re: Former Public Employee; Section 1103(g); Director of Probation Services; Board of Probation and Parole. Dear Mr. Bushey: This responds to your letters of April 22 and 28, 2005, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any restrictions upon employment of a Director of Probation Services following termination of service with the Pennsylvania Board of Probation and Parole. Facts: You are currently the Director of Probation Services with the Pennsylvania Board of Probation and Parole ( "Board of Probation and Parole "). You state that you have served in this capacity for all but six years of your 32 years with the Board of Probation and Parole. You have submitted a copy of your job description, which is incorporated herein by reference. Your current job responsibilities include directing a grant -in -aid program whereby approximately $20 million of state funds are awarded annually to the counties of Pennsylvania for the improvement of adult probation and parole services; overseeing the return to the counties of approximately $11 million in supervision fees, which is paid by adult criminal offenders; and directing the establishment of standards for pre - sentence investigations, the supervision of offenders, the qualifications of probation personnel, minimum salaries, and the quality of probation and parole services. You state that the Board of Probation and Parole is responsible for the collection, compilation and publication of statistical and other information relating to probation and parole work in the county courts. The Board of Probation and Parole staff is responsible for maintaining a diligent working relationship with the county adult probation and parole departments; conducting field evaluations of county adult probation departments on an annual basis; and providing technical assistance to the counties on policy and procedure, programs and services. Bushey, 05 -548 May 31, 2005 Page 2 You have submitted a letter of retirement effective at the close of business on May 13, 2005. On August 1, 2005, you will return to the work force in the capacity of Executive Director of the County Chief Adult Probation and Parole Officers' Association of Pennsylvania ("CCAPPOA"). You state that you do not foresee yourself "representing [ CCAPPOA] before the Board of Probation and Parole" in your capacity as Executive Director of CCAPPOA, but do envision continuing the existing relationship between the Board of Probation and Parole and CCAPPOA, which you characterize as a relationship of "information sharing." In this regard, you state that you currently provide information to the county chief probation officers from a variety of sources including, but not limited to, the American Probation and Parole Association, the National Association of Probation Executive, the National Institute of Corrections, and the Bureau of Justice Statistics. You also survey the chiefs on current issues, such as intestate transfer of supervision, DNA samples from offenders, and payments of court - ordered monies. You state that CCAPPOA invites the Board of Probation and Parole staff (Bureau of Probation Services, Office of Chief Counsel, Training Division, Bureau of Information Technology) to its business meetings and annual conferences. CCAPPOA also invites the Board of Probation and Parole staff to make presentations at these meetings on current issues that affect county probation administrators. The Board of Probation and Parole staff are also apprised of changes in personnel in county probation agencies and grants awarded to CCAPPOA through state agencies such as the Pennsylvania Commission on Crime and Delinquency. Based upon the foregoing facts, you ask whether you may accept the position of Executive Director of CCAPPOA to maintain a relationship of information sharing through verbal, telephonic, written and electronic correspondence with Board of Probation and Parole staff. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. As the Director of Probation Services with the Board of Probation and Parole, 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 Bushey, 05 -548 May 31, 2005 Page 3 (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 /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, constitutes 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 Bushey, 05 -548 May 31, 2005 Page 4 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 ublic 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 would be associated upon termination of public service would be the Board of Probation and Parole in its entirety. Therefore, for the first year after termination of service with the Board of Probation and Parole, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Board of Probation and Parole. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that the Ethics Act would not prohibit you from accepting employment as the Executive Director of CCAPPOA. However, to the extent your responsibilities in your new position would require you to interact with the Board of Probation and Parole in a manner that would constitute prohibited "representation," your performance of such activities would be contrary to Section 1103(g ) of the Ethics Act. Thus, if "information sharing" between CCAPPOA and the Board of Probation and Parole by means of verbal, telephonic, written and electronic correspondence would go beyond making general informational inquiries to the Board of Probation and Parole to secure information that would be available to the general public, such would be prohibited under Section 1103(g) of the Ethics Act. Other types of activities that would be prohibited under Section 1103(g) would include personally contacting the Board of Probation and Parole and its staff to invite them to CCAPPOA business meetings and annual conferences, and interacting with the Board of Probation and Parole and its staff at such meetings and annual conferences. 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. Bushey, 05 -548 May 31, 2005 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. Conclusion: As the Director of Probation Services with the Pennsylvania Board of Probation and Parole "Board of Probation and Parole"), 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 Board of Probation and Parole, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Board of Probation and Parole 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 requester 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