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HomeMy WebLinkAbout85-536 PierceMr. John C. Pierce Special Assistant Governor's Office of Administration 603 Main Capitol Harrisburg, PA 17120 Dear Mr. Pierce: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 April 18, 1985 ADVICE OF COUNSEL 85 -536_ Re: Former Public Employee; Section 3(e), Special Assistant to the Governor's Secretary of Administration This responds to your letter of April 2, 1985 in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Governor's Office of Administration. Facts: You are currently employed in the Governor's Office of Administration as the Special Assistant to the Secretary of Administration. The Secretary of Administration, who is your immediate supervisor, reports directly to the Governor. In your position as Special Assistant to the Secretary of Administration, you are responsible for carrying out staff assignments in assisting the Secretary. Generally, you are responsible for interviewing and evaluating individuals who are being considered for appointment by The Governor. In this respect you prepare such evaluations for review by the Secretary. You have indicated that in relation to these appointments you are involved in reviewing candidates for minor boards which are generally defined as those whose members are not compensated. You are not involved, pursuant to the information that you have furnished, in reviewing and evaluating applicants for cabinet positions. John C Pierce April 18, 1985 Page 2 Additionally, you assist in liaison with representatives of other state agencies and public and private organizations in personnel and related activities and you represent the Secretary at meetings and conferences regarding the resolution of administrative problems in the Governor's Office. You also participate in legislative matters as assigned by the secretary. A review of your job description which is incorporated herein by reference indicates that your position specifically is oriented toward assisting the Secretary in insuring the effective administration and operation of the Office of The Governor. You are considering resigning from your current position to accept an appointment with Electronic Data Systems Corporation. In this respect, you will be a software marketing and account executive responsible for marketing the Corporation's services in both the private and public sectors. You have requested the advice of the State Ethics Commission regarding any limitations that will be placed upon you under the State Ethics Act. Discussion: At the outset, it must he noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Special Assistant for The Governor's Secretary of Administration, you arc a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. 6402; 51 Pa. Code 61.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See O'Connor, 79 -507. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (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. John C. Pierce April 18, 1985 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Office of Administration. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have included not only the Office of Administration but The Governor's Office in general. This is so, because of your role as set forth in your job description in assisting with the overall operation and administration of The Governor's Office, hereinafter referred to as The Office. See, O'Connor, 79 -507, (regarding former employee of Governor's Bureau of Personnel). Your functions which in part included representing the Secretary regarding the resolution of administrative problems in The Office must be viewed as a major responsibility. Additionally, the term governmental body in this situation must also be extended so as to include any board, commission or body for which you reviewed and evaluated or for which you had the responsibility of reviewing and evaluating any one or more of the members as well as any department or agency in which such board commission or body is situated. This is in accord with prior Commission reasoning. Seltzer, 80 -057; Adler, 79 -043; Kline, 79 -001. 'Thus, the "governmental body" with which you have Teen "associated'" upon the termination of your employment would be the office as well as any of the boards, commissions, bodies and departments as identified above, hereinafter collectively referred to as the Boards. Therefore, within the first year after you would leave your current employment, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the office and The Boards. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office and the Boards. You may not, however, "represent" any new employer or client before the Office or the Boards as described more fully below for the first year after you leave your employment. The Ethics Commission has promulgated regulations to define "representation" as follows: John C. Pierce April 18, 1985 Page 4 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. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Office or the Boards), including, but not limited to, negotiations or renegotiations on contracts with the the Office or the Boards; 2. Attempts to influence the Office or the Boards; 3. Participating in any matters before the Office or the Boards over which you had supervision, direct involvement, or responsibility while employed by the Office; 4., Lobbying, that is representing the interests of any person or employer before the Office and the Boards in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Office or the Boards constitutes an attempt to influence your former govern ental body. See Kilareski, 80 -054. Therefore, within the first year after you leave your employment, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Office or the Boards so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office or the Boards. Once again, however, your activity in this respect should not be revealed to the Office or the Boards. Of course, any ban under the.Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office or the Boards to secure information which is available to the general public_ See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly infTueTice these entities or to • otherwise make known to the office or the boards your representation or work for your new employer. John C. Pierce April 18, 1985 Page 5 Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. In addition to the foregoing, and in order to be complete, you should also be aware of the special provisions of the Ethics Act relating to executive -level employees. In this respect the Act provides that: Section 3. Restricted activities. (g) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. You, as a Special Assistant to The Governor's Secretary of Administration, are clearly within this definition. • Executive -level State employee is defined as: Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. John C. Pierce April 18, 1985 Page 5 Thus iT yr.0 have to any extent participated in recruiting Electronic Data Processing Systems Corporation to initiate operations, open a new plant facility or branch in The Commonwealth and Commonwealth funds were employed as an inducement therefore, you would be prohibited :'or a period of two years from the date of your termination from being employed by that corporation. Conclusion: As a Special Assistant to the Governor's Secretary of Administr you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with The Governor's Office of Administration, you would become a "former public employee" subject to the restrictio.s imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Acc as outlined above. Further, should you terminate your employment or service as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. PurFuant 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. Thus 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 persona appearance before the 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 5 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /jkc Sincerel ohn J Generar Counsel