HomeMy WebLinkAbout05-507 BirbeckKasey Birbeck
149 South Pitt Street
Carlisle, PA 17013
Dear Ms. Birbeck:
ADVICE OF COUNSEL
November 29, 2005
05 -597
Re: Former Public Employee; Section 1103(g); Criminal Justice System Planner 1;
Pennsylvania Commission on Crime and Delinquency.
This responds to your letter of October 27, 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 Criminal Justice
System Planner f following termination of service with the Pennsylvania Commission on
Crime and Delinquency.
Facts: You are a Criminal Justice Planner 1 for the Pennsylvania Commission on
rime and Delinquency ( "PCCD "). You work in the Victims Compensation Assistance
Program as a Claims Specialist. You have submitted a copy of your job description,
which is incorporated herein by reference.
You are interested in resigning from your current position and accepting a
consultant position within the Victims Compensation Assistance Program as a Client
Service Representative. You state that the PCCD provides a grant to the Coalition of
Pennsylvania Crime Victims Organizations ( "COPCVO ") to locate, hire and place Client
Service Representatives. The Client Service Representative works as an independent
consultant for the PCCD in the Victims Compensation Assistance Program and is
responsible for providing sensitive and detailed claim and program information to and
answering questions from victims /claimants, service care providers, law enforcement,
victim service programs, attorneys, court personnel, the general public, and other
interested and authorized parties. You further state that other duties include providing a
range of confidential services through telephone contacts and e-mails to assist victims
of crime, their families, and other claimants with their emotional and financial recovery in
the aftermath of victimization; providing emotional support and utilizing crisis
intervention skills as needed in assisting victims /claimants.
Birbeck, 05 -597
November 29, 2005
Page 2
Based upon the foregoing facts, you ask whether you fall within the definition of
"public employee" subject to the Ethics Act, and in particular, Section 1103(g) relating to
former public officials and public employees.
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.
Before your question regarding the applicability of Section 1103(g) can be
addressed, an initial determination must be made as to whether you are 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.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
1 contracting or procurement;
2 administering or monitoring grants or subsidies;
3 planning or zoning;
4 inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
The regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe ":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
Birbeck, 05 -597
November 29, 2005
Page 3
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(1) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of the
Commonwealth in teaching as distinguished from administrative
duties.
(iv) Persons in the following positions are generally
considered public employees:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary - treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals.
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employees:
Birbeck, 05 -597
November 29, 2005
Page 4
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
Status as a "public employee" subject to the Ethics Act is determined by applying
the above definition and criteria to the position held. The focus is necessarily upon the
position itself, and not upon the individual incumbent in the position, the variable
functions of the position, or the manner in which a particular individual occupying the
position may carry out those functions. See, Phillips v. State Ethics Commission, 470
A.2d 659 (Pa. Commw. Ct. 1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D.
Pa. 1982). Furthermore, the Commonwealth Court of Pennsylvania has directed that
coverage under the Ethics Act be construed broadly and that exclusions under the
Ethics Act be construed narrowly. See, Phillips, supra.
Based upon the above judicial directives, the provisions of the Ethics Act, the State
Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light
of your duties and responsibilities, the necessary conclusion is that you are a "public
employee" subject to the financial reporting and disclosure requirements of the Ethics Act.
It is clear that in your capacity as a Criminal Justice Planner I for PCCD, you
have the ability to take or recommend official action with respect to subparagraph 5)
within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. §
1102. Specifically, you have the authority to provide: compensation and financial
assistance services to victims of crime; information and referrals offering reliable and
appropriate resources in the community; and creditor, landlord or employer intervention
upon the request of the victim. In addition, you have the power to: review and analyze
claims to determine eligibility for new claims process requests received for emergency
awards; conduct a review of the police report to determine if contribution could be
assessed or the claim denied; compute and verify all out -of- pocket losses and loss of
earnings for new claims and supplemental claims; and make decisions on emergency
awards. These activities would also meet the criteria for determining your status as a
public employee under the Regulations of the State Ethics Commission, specifically at 51
Pa. Code § 11.1, "public employee," subparagraph (ii).
Based upon the foregoing, the necessary conclusion is that you are 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.
Consequently, upon termination of public service, you would become 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
(g) Former official or employee. - -No former public
official or public employee shall represent a person, with
Birbeck, 05 -597
November 29, 2005
Page 5
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
regulations of the agency to which the billing is being submitted. Abrams/Webster,
Opinion 95 -011.
Birbeck, 05 -597
November 29, 2005
Page 6
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 PCCD in its entirety including, but not limited to, the Victims
Compensation Assistance Program. Therefore, for the first year after termination of
service with PCCD, Section 1103(g) of the Ethics Act would apply and restrict
"representation" of "persons" before PCCD.
As to the question you have posed, you are advised that Section 1103(g) of the
Ethics Act would prohibit you from accepting an independent consultant position within
the Victims Compensation Assistance Program as a Client Service Representative
because you would necessarily have prohibited contacts with your former governmental
body within the one year period of restricted activity. See, Confidential Opinion, 93 -005,
supra. However, after the expiration of the one year period, you would not be prohibited
from serving in such capacity.
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 a Criminal Justice Systems Planner 1 with the Pennsylvania
Commission on Crime and Delinquency ( "PCCD "), 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 PCCD, you would become a
"former public employee" subject to Section 1103(g) of the Ethics Act. The former
governmental body would be PCCD in its entirety including, but not limited to, the
Victims Compensation Assistance Program.
Birbeck, 05 -597
November 29, 2005
Page 7
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