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HomeMy WebLinkAbout84-574 ShefflerMattin Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 June 13, 1984 ADVICE OF COUNSEL Mr. M. Andrew Sheffler, Executive Director Commonwealth of Pennsylvania Public Schools Employes' Retirement System Box 125 Harrisburg, PA 17108 RE: Section 3(e); Representation; Public School Employes' Retirement System; Executive Director Dear Mr. Sheffler: 84 -574 This responds to your letter of May 15, 1984, in which you requested advice from the State Ethics Commission. Issue: You recently resigned as Executive Director of the Public School Employes' Retirement System and you have requested advice as to any restrictions placed upon you as a former public employee by the Ethics Act. Facts: You resigned as Executive Director of the Public School Employes' Retirement System, hereinafter PSERS, on May 16, 1984. Effective May 21, 1984, you joined an investment management firm in Philadelphia as Vice - President and Director of Marketing. You indicate that the firm which you joined has an investment advisory relationship with the Public School Employes' Retirement Fund, and you are concerned that there may be some limitations or restrictions on your future involvement with the Retirement Fund. You have, therefore, requested advice from the State Ethics Commission. Discussion: As the Executive Director of PSERS, you were a "public employee" within the definition of that term as defined in the Ethics Act. See Section Definitions 65 P.S 402. Consequently, upon your retirement from state employment, you became a "former public employee" subject to the provisions of Section 3(e) of the Ethics Act, which provides: (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. M. Andrew Sheffler June 13, 1984 Page 2 Initially, to answer your request we must identify the "governmental body" with which you were associated while working as Executive Director of PSERS, and the scope of the prohibitions associated with the term "representation ". In this context, the Ethics Commission has previously ruled that the scope of the "governmental body" with which an individual may have been deemed to be "associated" during his tenure of public employment, extends to the entities where he had influence, responsibility, supervision or control. In light of the fact that you were Executive Director of PSERS, the "governmental body" or bodies with which you must be deemed to have been associated includes PSERS and all Public School Employes' Retirement Funds within the PSERS. Therefore, the one year restriction outlined in Section 3(e) applies to your representing persons before PSERS or any of its members. The Ethics Act would not affect your ability to appear before agencies or entities other than the PSERS or its members. Likewise, there is no general restriction against your seeking and securing employment following your departure from PSERS. You may not, however, "represent" any new employer including your new investment firm before PSERS for the one year period from May 16, 1984. The State Ethics Commission regulations state that "representation" includes the following: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Opinions of the Commission further outline the scope of the "Restricted Activity" of "representation" as including: 1. Attempts to influence PSERS including personal appearances before PSERS, negotiating or renegotiating contracts with PSERS; 2. Participation in any matter before PSERS in any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed as the executive director of PSERS; 3. Lobbying, that is, representing the interests of any persons before the PSERS in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. Mr. M. Andrew Sheffler June 13, 1984 Page 3 In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere fact that preparing and signing as a preparer documents to be submitted to or reviewed by PSERS or having your name listed as the person who will provide technical assistance on a proposal, document, or bid, has been held to constitute an attempt to influence the governmental body with which you were associated (PSERS) and is prohibited for the one year period. See Kilareski, 80 -054. Therefore, within the first year after you leave PSERS, you should not allow your name to appear on proposals, documents, or bids, either as preparer or as the person who will provide technical assistance with respect to such proposals, bids, etc. which will be presented to or reviewed by PSERS. The Commission has, however, stated that the inclusion of your name as a mere employee on a "pricing proposal" is not prohibited as "representation ". Kotalik, 84 -007. You may, even under the above referenced restrictions, assist in the preparation of any documents presented to PSERS or assist in the preparation associated with appearances to be made by another person or individual before PSERS so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act does not prohibit or preclude you from making general informational inquiries of PSERS to secure information which is available to the general public. Cutt, 79 -023. Likewise, the Commission has concluded that if you are engaging in or administering an existing contract, as opposed to negotiating or renegotiating contracts, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involved dealing with PSERS personnel. Dalton, 80 -056 and Beaser, 81 -538. Conclusion: Upon your termination of state service as Executive Director of PSERS, you became a former public employee subject to the restrictions imposes; by the Ethics Act and your conduct should conform to the requirements of the Ethics Act as outlined above. Further, as a former public employee you must file a Statement of Financial Interests for each year that you held the position described above and for the year following your termination of service. Thus, a Statement of Financial Interests should be filed no later than May 1, 1985, which represents the filing required for the year following your termination of service. This Statement of Finanical Interests will record information for the calendar year 1984. Pursuant to Section 7(9)(ii), this 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, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. Mr. M. Andrew Sheffler June 13, 1984 Page 4 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 request that the full Commission review this Advice. A personal appearance before the full Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. S SC /n a Sinc - rely, te%(--.7t,14 andra S. Chr tianson General Counsel