HomeMy WebLinkAbout85-549 DecandisMr. Andrew T. Decandis
7617 Appleby Road
Harrisburg, PA 17112
Re: Former Public Employee; Section 3(e), Department of Public Welfare
Dear Mr. Decandis:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 29, 1985
ADVICE OF COUNSEL
85 -549
This responds to your letter of May 1, 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 are currently employed by the Pennsylvania Department of Public
Welfare, in the Bureau of Planning and Policy Analysis,hereinafter the Bureau.
This Bureau administratively is within the Department's Office of Policy,
Planning and Evaluation. In your current position you are the manager of the
Public Assistance Transportation Block Grant Program, hereinafter the Program.
The Public Assistance Transportation Block Grant is a $23 million federal and
state funded entitlement program providing 4.3 million trips to approximately
90,000 persons annually. Your job description which we have reviewed and
incorporated herein by reference indicates that you served as a senior member
of the bureau with responsibilities for dealing with county human services
planning, administration and service delivery. In part, your duties
included:
Developing objectives, policies and operating procedures =for the Public
Assistance Transportation Block Grant and reviewing those developed by
other program offices and Departments.
Indentifying initiatives and implementing program modifications and
improvements.
Developing and interpreting policies and regulations.
Preparing recommendations and /or reports on program operations including
fiscal aspects thereof.
Mr. Andrew T. Decandis
May 29, 1985
Page 2
Providing leadership and direction to county commissioners and other
county officials in achieving county program objectives.
Developing budget recommendations and budgets for new program efforts.
Establi shing reporting requi rements for local programs.
Reviewing the fiscal status of local programs and making recommendations
on county allocations, future budget requests and budget supplements.
Monitoring the administration and mangagement of programs in 67
counties.
Meeting with elected officials regarding necessary program modifications
at the local level .
Developing Requests for Proposals.
Negotiation of new contracts and contract amendments and preparing them
for submission and review.
Reviewing and making recommendations on pertinent legislation.
Representing the Department of Public Welfare at public meetings and
conferences.
Reviewing all DPW transit efforts and the development of recommendations
for their coordination and improved management.
Implementing directly the development of new programs in the area of
transportation.
Acting as liaison with other state departments and Department of Public
Welfare Program Offices, on transportation- related issues.
You indicate that you have been offered a position as a consultant for a
consulting firm in Philadelphia. This firm currently ha,s a contract with the
Department to provide management and technical assistance to counties in the
area of human services management and services integration.
In your new position you would, in part, provide consulting services to
the counties under this contract as well as under future contracts.
You finally indicate that you performed no functions, while employed by
the Department regarding the negotiation of this contract, the monitoring
thereof, or the selection of this company as a contractor.
Mr. Andrew T. Decandis
May 29, 1985
Page 3
You ask what, if any, restrictions may be imposed upon you under 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 Manager of the Public Assistance Transportation Block Grant Program
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. 5402; 51 Pa. Code 51.1. 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 Shatto, 84 -581;
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 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.
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 ofthe 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 TiFrifission, 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 Office of
Policy, Planning and Evaluation hereinafter, the Office. This result is
ocassioned by the fact that in your position you were responsible for the
development of policy, making recommendations on proga rm operations and were
Mr. Andrew T. Decandis
May 29, 1985
Page 4
generally responsible for the overall operation and effectiveness of the
program. This responsibility was exercised with the Bureau which is within
the Office. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the Office
generally, including the Bureaus and divisions therein. 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 Office and respective Bureaus and divisions
therei n.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Office as set forth avove. Likewise,
there is no general limitation on the type of employment in which you may
engage, following your departure from the Department. We do note, however,
that the conflicts of interest law is primarily concerned with financial
conflicts and violations of the public trust. The intent of the law generally
is that during the term of a person's public employment he must act
consistently with the public trust and upon departure from the public sector,
that individual should not be allowed to utilize his association with the
public sector, officials or employees to secure for himself or a new employer,
treatment or benefits that may be obtainable only because of his association
with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004.
It should also be noted that while the Ethics Act would not prohibit you
from representing your new employer generally with the various counties, you
must avoid any conflict of interest or appearance of such a conflict. Such
conflict may be addressed by the Commission. 65 P.S. §403(d). In this
respect you should refrain from participation in any matter at the county
level regarding the program for which you were responsible. As an employee in
the the Department, you were responsible for working with county government
regarding the general operation of the program. Any work, therefore, on
behalf of a private employer specifically relating to this program for which
you were resposible would occasion a conflict as noted above. While you have
not indicated if your new employer is involved in providing services in
reference to the program we,,nevertheless note the above restriction for the
sake of completeness.
In respect to the one year representation restriction 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.
Mr. Andrew T. Decandis
May 29, 1985
Page 5
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 and the bureaus and
divisions therein), including, but not limited to, negotiations or
renegotiations on contracts with the these governmental bodies;
2. Attempts to influence these governmental bodies;
3. Participating in any matters before these governmental bodies 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 above identified governmental bodies 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, the bureaus and divisions therein, 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. The Commission, however, has stated that
the inclusion of your name as an employee or consultant on a "pricing
proposal," even if submitted to or reviewed by the previously identified
governmental bodies, is not prohibited as "representation." See Kotalik,
84 -007.
You may, assist in the preparation of any documents presented to the
Office or the Bureau and divisions therein, so long as you are not identified
as the preparer. You may also counsel any person regarding that person's
appearance before these entities. Once again, however, your activity in this
respect should not be revealed to these entities. Of course, any ban under
the Ethics Act would not prohibit or preclude you from making_ general
informational inquiries of your formal governmental bodyto 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 these entities or to
otherwise make known to the the Office 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.
Mr. Andrew T. Decandis
May 29, 1985
Page 6
Conclusion: As a manager of the Public Assistance Transportation Block Grant
Program within the Department of Public Welfare, 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. These
restrictions would operate to prohibit your representations of persons before
the Office of Policy Planning and Evaluation, the Bureau's within that Office
and the divisions within the respective Bureau.
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
ti 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,
o n J ontino
Gen -ral Counsel