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HomeMy WebLinkAbout05-591 StewartSusan Stewart 410 Cherokee Drive Mechanicsburg, PA 17055 Dear Ms. Stewart: ADVICE OF COUNSEL November 8, 2005 05 -591 Re: Former Public Employee; Section 1103(g); Higher Education Associate 2; Pennsylvania Department of Education; Bureau of Teacher Certification and Preparation; 95 -day Annuitant Program. This responds to your letter of October 6, 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 Higher Education Associate 2 following termination of service with the Pennsylvania Department of Education, Bureau of Teacher Certification and Preparation. Facts: As a former annuitant classified as a Higher Education Associate 2 for the Pennsylvania Department of Education ( "PDE "), Bureau of Teacher Certification and Preparation, you request an advisory from the State Ethics Commission. You have submitted facts that may be fairly summarized as follows. From 1993 until April 30, 2004, you were employed by PDE in the Bureau of Teacher Certification and Preparation. From 1997 though your retirement in April 2004, you served as the Division Chief for the Division of Candidate Evaluation Services. Thereafter from January 2004 until the date of your retirement, you served as Acting Bureau Director. From the week following your retirement until August 31, 2005, you returned to the Bureau of Teacher Certification and Preparation as an annuitant in the position of Higher Education Associate 2 pursuant to the 95 -day program for annuitants (71 Pa.C.S. § 5706(a.1). You functioned as an advisor to the new managers, mentor to the staff evaluators and the lead person on several PDE programs, including Act 48 of 1999 (relating to continuing professional development for professional public school employees) and the Highly Qualified Teacher sections of the No Child Left Behind report to the U.S. Department of Education, as required under the No Child Left Behind Act of 2002. You have submitted a copy of a letter from the Bureau of Human Stewart, 05 -591 November 8, 2005 Page 2 Resources of PDE describing your most recent position, which is incorporated herein by reference. You were recently offered a position at the Capital Area Intermediate Unit ( "CAIU "). You would begin working on September 1, 2005, the start of the school year. You state that the CAIU 's intent was to hire you as a Resource Advisor who could be used on an as- needed and part -time basis by local educational entities who contract with the CAIU. You state that the service is currently being implemented by the IU. In your new position, you would be responsible for the following duties: providing technical advice and assistance for certification questions involving eligibility requirements, policies, guidelines, and processes; assisting educational agencies in developing position descriptions and course descriptions relative to appropriate certification as required by statute; providing presentations and training in certification regulations and guidelines; serving as a resource person for issues related to highly qualified teacher reports, Chapter 49 regulations, audit citations, non - citizen applicants, and vocational teachers; and providing recommendations to the educational agencies regarding PDE staff who are experts in matters related to but outside teacher certification. You state that both the CAIU and the educational agencies that contract through the CAIU understand that you no longer represent the PDE and that your only access to professional updates in teacher certification will come from that information which is made public through PDE's website, PennLink notices, and those notices distributed through the professional education associations. You state that you will not be requesting any information directly from or working with PDE nor will you be acting as a representative of the CAIU or the educational agencies before PDE. You maintain that your communications will be with the CAIU or with the educational agencies only. The educational agencies are relying exclusively on your certification background and knowledge and your commitment to maintaining your expertise through the research of public information. You state that you will report to the Director of Business and Operations who reports to the Executive Director of the IU. You further state that Business and Operations includes the Human Resources Department at the IU. Based upon the foregoing facts, you seek guidance as to the restrictions that apply to former public officials and public employees under Section 1103(g) of 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 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. During your r previous employment with the Pennsylvania Department of Education "PDE" as Actin g Bureau Director in the Bureau of Teacher Certification and Preparation, you were a public employee subject to the Ethics Act. Likewise, an objective review of the submitted job description for your most recent assignment as an annuitant classified as a Higher Education Associate 2 in PDE's Bureau of Teacher Certification and Preparation 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. Stewart, 05 -591 November 8, 2005 Page 3 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 classified as a Higher Education Associate 2 in PDE's Bureau of Teacher Certification and Preparation, 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). 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. Stewart, 05 -591 November 8, 2005 Page 4 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 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 August 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 restrictions of Section 1103(g) apply for a full one -year period each time an individual becomes a former public employee. Thus, as a result of your participation in Stewart, 05 -591 November 8, 2005 Page 5 the 95 -day program, the one -year period of applicability of Section 1103(g) began anew following your termination of participation in the 95 -day program on August 31, 2005. The governmental body with which you have been associated upon termination of the aforesaid service is PDE in its entirety, including but not limited to, the Bureau of Teacher Certification and Preparation. 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 a Resource Advisor for the Capital Area Intermediate Unit ( "CAIU "). However, to the extent your job duties as a Resource Advisor would require you to interact with PDE in a manner that would constitute prohibited "representation," your performance of such activities would be contrary to Section 1103(g) of the Ethics Act. 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 an annuitant classified as a Higher Education Associate 2 in the Bureau of Teacher Certification and Preparation of the Pennsylvania Department of Education ( "PDE "), 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 August 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. Thus, as a result of your participation in the 95 -day program, the one -year period of applicability of Section 1103(g) began anew following your termination of participation in the 95 day program on August 31, 2005. The governmental body with which you have been associated upon termination of the aforesaid service is PDE in its entirety, including but not limited to, the Bureau of Teacher Certification and Preparation. 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 Stewart, 05 -591 November 8, 2005 Page 6 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