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HomeMy WebLinkAbout85-538 DumaresqMr. Richard Dumaresq 229 South 4th Street — Steelton, PA 17113 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 April 22, 1985 ADVICE OF COUNSEL 85 -538 Re: Former Public Employee; Section 3(e), Pennsylvania Department of Public Welfare Dear Mr. Dumaresq: This responds to your letter of March 29, 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 Pennsylvania Department of Public Welfare. Facts: You indicate that you were employed by the Pennsylvania Department of Public Welfare as Director of the Special Development Efforts Unit in the Bureau of Personnel. Generally, the Division provides analysis and recommendations for the identification of specific personnel management training needs and develops training programs for the Department of Public Welfare, hereinafter referred to as the Department. Specifically, your duties in part included the development and design of complete training courses and programs for Department personnel which were oriented toward the effective administration and operation of the Department. In order to accomplish this objective you developed methods, approaches and . techniques to eliminate various operational problems, and established good management practices in order to improve Department productivity. You were also responsible for the control of program instructors, and contacting training participants, supervisors and departmental executives to follow -up with the assessment of the quality and effectiveness of the training provided. Mr. Richard Dumaresq April 22, 1985 Page 2 Finally, you prepared detailed assessments and periodic reports for submittal to the Bureau Director, Office of Personnel Services, Executive Deputy Secretary, the Secretary and other Deputies on the status and effectiveness of training, current training programs and future plans and objectives. On March 28, 1985 you resigned from your position in the Department and are contemplating marketing training service programs similar to those you formulated while employed by the Department. You ask what, if any, restrictions are placed upon your dealings with State agencies by virtue of the State Ethics Act. Discussion: At the outset, it must be 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 Director of the Special Developmental Effort Unit in the Bureau of Personnel Planning and Employee Development for the Department, you are to be considered 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. §402; 51 Pa. Code §1.1. 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 DeBrunner, 84 -595. 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 fo nme r 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. Mr. Richard Dumaresq April 22, 1985 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Department. 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 emission, 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 appears to have been exercised within the Department in general. This is so in light of your functions that included the development and recommendation of departmental programs and systems. Thus, the "governmental body" with which you have been "associated" upon the termination — of your employment would be the Department. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Department. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department . Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. You may not, however, "represent" any new employer or client including your own business before the Department as described more fully below for the first year after,you leave your current employment. The Ethics Commission has promulgated regulations to define "representation" as follows: 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: Mr. Richard Dumaresq April 22, 1985 Page 4 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Department, including, but not limited to, negotiations or renegotiations on contracts with the Department; 2. Attempts to influence the Department; 3. Participating in any matters before the Department over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the Department 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 Department, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Department so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department. Once again, however, your activity in this respect should not be-revealed to the Department. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Department 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 influence this entity or to otherwise make known to the Department your representation of, or work for your new employer. 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. Conclusion: As a Director of the,Special Developmental Effort Unit, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Mr. Richard Dumaresq April 22, 1985 Page 5 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. 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. 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 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. JJC /sfb Sincerely, John J. tino Genera Counsel