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HomeMy WebLinkAbout85-562 HodgeMs. Linda L. Hodge 1710 Glenside Drive Harrisburg, PA 17109 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 July 5, 1985 ADVICE OF COUNSEL 85 - 562 RE: Former Public Employee; Section 3(e), Department of General Services, Administrative Officer Dear Ms. Hodge: This responds to your letter of June 19, 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 General Services. Facts: You have recently terminated your position with the Pennsylvania Department of General Services, hereinafter the Department. You were employed by the Department as an administrative officer and acted as chief of the Vendor and Information and Support Division. This division is administratively within the Department's Bureau of Purchases, hereinafter the Bureau. In this position you were responsible for a variety of administrative and managerial duties involving maintenance of vender bid lists, preparation of the State Contracts Information Section, Purchase Requisitions, Purchase Orders, Bid Proposals and of Commonwealth supplies, materials, and equipment. As part of your responsibilities, you worked in conjunction with the Department's Buying Division, Contract Writing Section and Purchase Order Section. All of these divisions and sections are within the Bureau. We have reviewed both your job description and your position classification and have incorporated these documents herein by reference. You indicate that you have accepted a position as office manager for a local steel corporation. In this position you will be responsible for receiving telephone calls and messages; taking dictation, transcribing letters and related reports, overseeing the accounts payable and account receivable documents and insuring receipt of payment within a specified time period; receiving and documenting man hours of iron workers and foreman employes, Jul y l.�ndl Hodge Page 2 making contacts to steel, handrail and rebar manufacturers and placing appropriate orders by job site; preparing from information provided by the SIPA estimator and company officials, bid documents for installation and erection of stuctural steel and rebar; and all other related duties involved in the operation and staffing of a business office. You seek the advice of the Commission as to what, if any, restrictions are imposed under the State Ethics Act. You do not indicate if the company provides any services to the Commonwealth of Pennsylvania. 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 the chief administrative officer for the Vendor Information and Support Division of 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 Peters, 82 -505 . 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). Ms. Linda L. Hodge July 5, 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 Purchases. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau, including all divisions and sections 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 Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Bureau. 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), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by the Department; Ms. Linda L. Hodge July 5, 1985 Page 4 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, 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 so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Bureau 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 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 chief of the Vendor Information and Support Division, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of General Services, 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 (1) year representation restriction is the Bureau of Purchases including all divisions and sections therein. 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. Ms. Linda L. Hodge July 5, 1985 Page 5 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 revieN 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 /rdp Si ncerely, John Jntino General Counsel