Loading...
HomeMy WebLinkAbout85-559 LarkinMr. Edward R. Larkin c/o Louis J. Adler, Esquire 125, 128 -130 Locust Street P.O. Box 11933 Harrisburg, PA 17108 -1470 Dear Mr. Larkin STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 June 28, 1985 ADVICE OF COUNSEL 85 -559 RE Former Public Employee; Section 3(e), Area Income Maintenance Manager, Department of Public Welfare This responds to your letter of June 3, 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 as an area income maintenance manager for the Pennsylvania Department of Public Welfare, hereinafter the Department. You are at this time assigned to the Eastern County Assistance Officers Operations Division. You were assigned to that office on March 29, 1985. Prior to that assignment, you were an area income maintenance officer in the Western Regional Office. We have reviewed your job description and position classification and have incorporated those documents herein by reference. Generally, your duties and responsibilities included but were not limited to the following: Planning, organizing, and administering the Public Assistance program for various counties. Representing the program office in coordinating programs and functions. Directing the development of a number of county assistance office operational plans and budget recommendations, and overseeing the departmental policies in Public Assistance program operations. Mr. Edward R Larkin June 28, 198; Page 2 Providing direction to county assistance programs to insure that their objectives and resources are integrated with related community human services programs. Directing the review and evaluation of all programs and operations within the scope of public assistance including cash assistance, medical assistance and food stamps under the purview of county assistnace offices. Confering with local government officials, representatives of public and private welfare groups, departmental program administrators, and other interested groups on matters concerning the administration of Public Assistance programs. Directing the investigation of complaints and allegations related to the delivery of public assistance programs. Preparing reports of public assistance programs, services, operations and problems for the Director of Operations and the Deputy Secretary for Income Mai ntenance. Meeting with elected officials, county administrators, representatives from community human services agencies, community citizen groups and others to interpret provisions of current public assistance legislation and departmental rules and regulations. Supervising a staff of professional and clerical employees responsible for developing, monitoring, evaluating and providing technical assistance to state, county, and other providers of services. Employees in your position are required to exercise a high degree of independent judgment in developing and implementing policy. Work is performed under the general administration of the Regional Operations Director and is' i reviewed by the Deputy Secretary for Income maintenance. You have further indicated that in the mid 1970's, your duties included delivering inner city services to recipients. This involved meeting the problems of such recipients which arose due to the lack of financial services. In this respect, you were involved with quasi banks. You indicate that you have not been involved in this area since 1982. You have been offered an employment opportunity with United States Banknote Corporation involving the operation of this company's subsidiary in Pennsylvania, Ohio and Michigan. This company engages in quasi banking activities, such as issuing money orders, cashing checks, issuing food stamps, and accepting utility bill payments. Mr. Edward R. Larkin June 28, 1985 Page 3 You do not indicate what, if any, responsibilities you had in relation to this corporation when you were involved in this area. We will, therefore, assume that you were not involved with the corporation. You ask whether there would be any conflict of interest or violation of the State Ethics Act if you were to accept this position. 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 an Area Income Maintenance Manager 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 Gordon, 84 -577; Shatto, 84 -581. 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 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). Mr. Edward R. Larkin June 28, 1985 Page 4 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 in both the Western County Assistance Officers (CAO) Operations Division as well as in the Eastern CAO Operations Division. This is especially true in light of the high degree of responsibility that one in your position is accorded in relation to developing and implementing policy and in light of the fact that you were assigned to both offices during the last year. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Offices of Eastern and Western CM Operations, hereinafter the Offices. This would, of course, include any divisions or bureaus within said Offices. 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 Offices. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Offices. 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. See also, Section 3(0 of the Ethics Act, 65 P.S. §403(b). 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. 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 Offices, including, but not limited to, negotiations or renegotiations on contracts with the Offices; Mr. Edward R. Larkin June 27, 1985 Page 5 2. Attempts to influence the Offices; 3. Participating in any matters before the Offices 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 Offices 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 Offices, 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 Offices so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Offices. Once again, however, your activity in this respect should not be revealed to the Offices. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Offices 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 these entities or to otherwise make known to the Offices 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 an Area Income Maintenance Manager, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Public Welfare, 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. The governmental body with which you have been associated for the purpose of the one year representation restriction is the ' Eastern County Assistance Officers Operations Division and the Western County Assitance Officers Operations Division. Mr. Edward R. Larkin June 28, 1985 Page 6 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 Si ncer ohn J. tino Gener• Counsel