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HomeMy WebLinkAbout85-560 IckesMr. John Ickes 43 College Avenue P.O. Box 419 Factoryville, PA 18419 Dear Mr. Ickes: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 July 1, 1985 ADVICE OF COUNSEL 85 - 560 Re: Former Public Employee; Section 3(e), Human Resource Development Specialist II, Department of Community Affairs This responds to your letter of June 25, 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 Department of Community Affairs. Facts: You are currently employed as a Human Resource Development Specialist II, in the Department of Community Affairs, hereinafter the Department. You will be retiring from this position and contemplate private employment. You, therefore, seek the Commission's advice on any restrictions that may be imposed under the State Ethics Act. In your current position you are assigned to the Scranton Regional Office, Region II. Generally, you work with community based organizations and agencies in Region II in assisting them in developing plans, programs and applications for funding, instructing them in the use of proposal formats, program guidelines and regulations. You provide technical assistance in regard to funding programs. As a representative of the State Economic Opportunity Office (SEGO), you render technical assistance to Community Action Agencies (CAAs) to help ensure compliance with the respective program guidelines and contractural agreements. We note that SE00 is the Bureau of Human Resources, hereinafter the Bureau. You monitor department funded programs and review quarterly reports from grantee agencies. Additionally, you review, evaluate and prioritize letters Jul J 1 t , n 1985 es July Page 2 of intent and proposals for the Bureau, funded and tax credit programs, prepare forms and write -ups for presentations to Regional Proposal Evaluation Review Committee (PERC). You also see that evaluated letters of intent and PERC Proposals are forward to the Bureau in a timely manner. The PERC committee reviews proposals for grants and funding. We have reviewed your job description and position classification and have incorporated those documents herein by reference. 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 Human Resource Specialist II 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, 002; 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 Golden, 83 -618. 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. John Ickes July 1, 1985 Page 3 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 Bureau of Human Resources, i.e. the Bureau, the Scranton Regional Office, hereinafter the Region, and the Proposal Evaluation Review Committee, hereinafter the Committee. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau, the Region, and the Committee. 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 aforementioned governmental bodies. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau, the Region, and the Committee. 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. 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 Bureau, the Region, and the Committee, including, but not limited to, negotiations or renegotiations on contracts with these entities; Mr. John Ickes July 1, 1985 Page 4 2. Attempts to influence these entities; 3. Participating in any matters before these entities 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 mentioned 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 Region, the Bureau, the Office and the Committee, 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 Bureau, the Region, and the Committee 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 the the above mentioned entities. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of any governmental body 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 Bureau, the Region, or the Committee 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 Human Resource Specialist II, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Community Affairs, 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. You, therefore, may not represent any person for a period of one year before the Bureau of Human Resources, the Scranton Regional Office of the Department, and the Proposal Evaluation Review Committee. Mr. John Ickes July 1, 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. 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 This letter is a public record and will be made available as such. Sincerely, ontino al Counsel