Loading...
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