HomeMy WebLinkAbout05-572 JonesDavid W. P. Jones
807 7 Avenue
Parkesburg, PA 19365
ADVICE OF COUNSEL
August 30, 2005
05 -572
Re: Former Public Employee; Section 1103(g); Welfare Program Executive 1;
Department of Public Welfare; 95 -day Annuitant Program; Consulting Business;
Contract with Former Governmental Body.
Dear Mr. Jones:
This responds to your letter of July 26, 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., would present any restrictions upon an annuitant who, following
retirement, has provided services to the Commonwealth of Pennsylvania, Department of
Public Welfare ( "DPW ") as a Welfare Program Executive 1 under the 95 -day annuitant
program established at 71 Pa.C.S. § 5706(a.1), when: (1) the annuitant has already
utilized the maximum amount of time allowable under the 95 -day program for calendar
year 2005; and (2) the annuitant has created a consulting business in order to continue
providing the same services through a contract that would require interaction with DPW.
Facts: You seek an advisory regarding the post - employment restrictions of the
Ethics Act. You have submitted facts, the material portions of which may be fairly
summarized as follows.
On September 29, 2003, you retired from your former Commonwealth
employment as Chief Executive Officer of Wernersville State Hospital. Wernersville
State Hospital is part of the Bureau of Hospital Operations ( "BHO ") within DPW's Office
of Mental Health and Substance Abuse Services "OMHSAS ").
In October 2003, you returned to state service as an annuitant. It is
administratively noted that there is a 95 -day program that allows annuitants to return to
service for the Commonwealth for up to 95 days per fiscal year under certain conditions
(see, 71 Pa.C.S. § 5706(a.1)).
As an annuitant, you performed services for DPW in various roles in 2003 and
2004. One such role required a change in your job classification, such that from
December 2003 forward, you were classified as a Welfare Program Executive I.
In December 2004, your supervisor, the Director of BHO (who reports to the
Deputy Secretary for OMHSAS) approached you with regard to working on the closure
of the Harrisburg State Hospital ( "HSH "). On January 2, 2005, you accepted an
Jones, 05 -572
August 30, 2005
Page 2
assignment to coordinate the closure of HSH. Your job classification as an annuitant
performing these duties remained Welfare Program Executive 1. You have submitted a
copy of the job description for this most recent assignment, which job description is
incorporated herein by reference.
By May 31, 2005, you had utilized all of your available time under the 95 -day
annuitant program for the 2005 calendar year.
You then formed a consulting business effective June 1, 2005. Meanwhile,
OMHSAS transferred funds to Cumberland County sufficient for Cumberland County to
enter into a contract with your consulting business. You state that the intent of the
contract was to allow you to continue to be available to DPW to coordinate the closure
of HSH until the end of calendar year 2005. You have submitted a copy of the aforesaid
contract, which is hereinafter referred to as the Contract."
The parties to the Contract are Cumberland and Perry Counties and your
consulting business identified as "DWPJ Consultants." The Contract is dated May 23,
2005, although your signature on the Contract is dated June 13, 2005. The term of the
Contract is from June 1, 2005, through no later than January 31, 2006. The Contract
provides for payment to your firm at an all- inclusive rate of $55.00 per hour, with the
total payment not to exceed $83,600. The Contract states, inter alia:
• That OMHSAS, in consultation with the counties in the HSH Service Area
selected your consulting business to provide professional consulting and
coordination services relative to the closure of HSH;
• That OMHSAS selected Cumberland -Perry MH -MR to serve as the
administrative county program for this consulting process to administer the
funding and the Contract with your consulting firm;
• That OMHSAS appropriated funding to Cumberland -Perry MH -MR to pay for
services from your consulting firm on an established per -hour basis;
• That the Secretary of DPW and OMHSAS would retain responsibility for the
review and approval of all assessments and placement recommendations
coordinated by your consulting firm under the terms of the Contract;
• That your firm's invoices for work performed under the Contract would be subject
to review by OMHSAS prior to payment by the counties; and
• That your firm's services would include, inter alia, coordinating OMHSAS
activities and functions with other Commonwealtt i agencies and the counties in
the HSH Service Area, participating in planning activities for closure and /or
consolidation as requested by the Deputy Secretary for OMHSAS or her
agent(s), conducting meetings on behalf of OMHSAS, representing OMHSAS at
the discretion of its Deputy Secretary, and making progress reports to the Deputy
and the Director of BHO.
You state that under the provisions of the Contract, you lack official decision -
making authority on any substantial issues that impact on the negotiations between the
Commonwealth and any of the counties impacted by the closure of HSH. You state that
your responsibilities are strictly as a coordinator to facilitate the closure of the hospital.
You state that you do not make decisions, but provide information, consultation and
assistance to the counties and the Commonwealth in the decisions that impact and
facilitate the closure.
Based upon the foregoing facts, you ask whether you may continue to work as
coordinator of the closure of HSH.
Jones, 05 -572
August 30, 2005
Page 3
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.
It is further initially noted that, pursuant to the same aforesaid Sections of the
Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may, and shall be addressed.
There is no question that during your previous employment as Chief Executive
Officer of Wernersville State Hospital, you were a public official/public employee subject
to the Ethics Act. Likewise, an objective review of the submitted job description for your
most recent assignment as an annuitant coordinating the closure of HSH establishes
that your responsibilities and authority in that role would clearly fall within the definition
of "public employee" as set forth in the Ethics Act and Regulations of the State Ethics
Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1.
Furthermore, it is clear that when a former public employee returns to service as
an annuitant to again perform services falling within the aforesaid definition of "public
employee," the annuitant again becomes a "public employee" subject to the Ethics Act.
See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004.
Based upon the above, the necessary conclusion is that as an annuitant
coordinating the closure of HSH for DPW under the 95 -day program for annuitants,
classified as a Welfare Program Executive 1, you would be considered a "public
employee" subject to the Ethics Act and the Regulations of the State Ethics
Commission. 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1; Graves, supra; McGlathery,
supra. Indeed, each time you would commence providing such services under the 95-
day program, you would become a "public employee" again, and each time you would
terminate providing such services under that program, you would once again became a
former public employee subject to the restrictions of Section 1103(g) of the Ethics Act.
Graves, supra; McGlathery, supra.
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).
Jones, 05 -572
August 30, 2005
Page 4
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
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
Jones, 05 -572
August 30, 2005
Page 5
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.
In considering the applicability of Section 1103(g) under the facts that you have
submitted, you are advised that the restrictions of Section 1103(g) would apply to
restrict you for a full one -year period each time you would become a former public
employee. loyee. See, Graves, supra; McGlathery, supra. Thus, as a result of participation in
the program for annuitants, the one -year period of applicability of p Section
1103(g) would begin anew each time you would terminate participation in the 95 -day
program.
Consequently, at or about May 31, 2005, when you ceased providing services to
the Commonwealth under the 95 -day program for annuitants because you had utilized
the maximum time allowable for 2005, you became a "former public employee" subject
to Section 1103(g) of the Ethics Act. The governmental body with which you have been
associated upon termination of the aforesaid service is DPW in its entirety, including but
not limited to, OMHSAS and BHO.
Therefore, until the expiration of a full one -year period following your most recent
termination of service as an annuitant with DPW, or until you resume providing services
as an annuitant to DPW, whichever comes first, Section 1103(g) of the Ethics Act will
apply to restrict you from engaging in conduct that would constitute the representation
of a "person," including your consulting business, before DPW with promised or actual
compensation. See, Gagliardo, Order 1369.
Based upon the submitted facts, it appears that you might already be performing
services under the Contract. As noted above, given that an opinion /advice may be
given only as to prospective (future) conduct, to the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, specifically, whether you may continue to coordinate the closure of HSH, your
inquiry may, and shall be addressed.
You are advised that given your current status as a former public employee,
Section 1103(g) of the Ethics Act would preclude you from performing many of your
primary functions under the Contract, such as, participating in planning activities for
closure and /or consolidation as requested by the Deputy Secretary for OMHSAS or her
agent(s), conducting meetings on behalf of OMHSAS, representing OMHSAS at the
discretion of its Deputy Secretary, and making progress reports to the Deputy and the
Director of BHO. To perform such functions would cause you to run afoul of Section
1103(g) of the Ethics Act because you would necessarily engage in prohibited
representation before DPW, your former governmental body.
Thus, to the extent your coordination activities relative to the closure of HSH
would require you to interact with DPW in a manner that would constitute prohibited
"representation," your performance of such activities would be contrary to Section
1103(g) of the Ethics Act.
Jones, 05 -572
August 30, 2005
Page 6
Based upon the facts that 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 herein is the
applicability of the Governor's Code of Conduct.
Conclusion: As an annuitant coordinating the closure of Harrisburg State Hospital
( "HSH ") for the Commonwealth of Pennsylvania, Department of Public Welfare ( "DPW "),
pursuant to the 95 -day program for annuitants (71 Pa.C.S. § 5706(a.1), and classified
as a Welfare Program Executive 1, you would be considered a "public employee"
subject to the Ethics Act and the Regulations of the State Ethics Commission. Each
time you would commence providing such services under the 95 -day program, you
would become a "public employee" again, and each time you would terminate providing
such services under that program, you would once again became a former public
employee subject to the restrictions of Section 1103(g) of the Ethics Act. The
restrictions of Section 1103(g) would apply for a full one -year period each time you
would become a former public employee. At or about May 31, 2005, when you ceased
providing services to the Commonwealth under the 95 -day program for annuitants
because you had utilized the maximum time allowable for 2005, you became a "former
public employee" subject to Section 1103(g) of the Ethics Act. The governmental body
with which you have been associated upon termination of the aforesaid service is DP W
in its entirety, including but not limited to, the Office of Mental Health and Substance
Abuse Services and Bureau of Hospital Operations. Therefore, until the expiration of a
full one -year period following your most recent termination of service as an annuitant
with DPW, or until you resume providing services as an annuitant to DPW, whichever
comes first, Section 1103(g) of the Ethics Act will apply to restrict you from engaging in
conduct that would constitute the representation of a "person," including your consulting
business, before DPW with promised or actual compensation.
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.
Jones, 05 -572
August 30, 2005
Page 7
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