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HomeMy WebLinkAbout85-569 TrautweinMr. Charles H. Trautwein 1312 Angora Avenue Yeadon, PA 19023 Dear Mr. Trautwein: MaIhng Address State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 August 8, 1985 ADVICE OF COUNSEL Re: Former Public Employee; Section 3(e), Liquor Control Board 85 -569 This responds to your letter of July 10, 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 Liquor Control Board. Facts: You have retired from your employment with the Pennsylvania Liquor Control Board effective June 28, 1985. You served as an Assistant Supervisor in the Bureau of Enforcement, District Office No. 1, in Philadelphia. Generally, you were involved in supervisory investigative and /or auditing work in the enforcement of state alcoholic beverage laws. You were responsible for assigning and supervising the work of subordinate enforcement officers and for assisting in directing the enforcement of alcoholic beverage laws within District 1, hereinafter the District. Work involved leading field investigations, comprehensive audits, and raids. Considerable initiative and independent judgment are exercised in directing these activities and supervision is received through conferences with the district supervisor and a review of reports submitted. An employee in this position assists in directing the enforcement of alcoholic beverage laws within an assigned District; assumes supervision of the District in absence of the supervisor. State Ethics Commission • 308 Finance Building a Harrisburg, Pennsylvania P1r. Charles H. Trautwein August 8, 1985 Page 2 You also supervised subordinate enforcement officers in conducting investigations, inspections and audits to determine and enforce compliance with the laws and regulations controlling the sale and manufacture of alcoholic beverages. You were responsible for leading raids on establishments suspected of being operated in violation of the alcoholic beverage laws, to seize illegal stills, and to apprehend and arrest violators. Employees in this classification also perform the following functions: Reviews reports and expense accounts submitted by enforcement officers. Testifies at administrative and judicial hearings. Prepares reports to activities and findings. Maintains working relationships with other law enforcement agencies. Performs related work as required. We have reviewed your job specification and have incorporated that document herein by reference. You indicate that you will be seeking employment with an attorney who represents clients before the LCB, as an investigator for this attorney you seek advice as to the propriety of such employment. 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 Assistant Supervisor for the LCB, Bureau of Enforcement, 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 Baub, 83 -628; Litman, 83 -598; Bruggeman, 84 -597. Mr. Charles H. Trautwein August 8, 1985 Page 3 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 LCB. 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). 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 District 1, hereinafter the District. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the District. Therefore, within the first year after you would leave the LCB, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis the District. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the District. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the LCB. 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. Mr. Charles H. Trautwein August 8, 1985 Page 4 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 District, including, but not limited to, negotiations or renegotiations on contracts with the District; 2. Attempts to influence the District; 3. Participating in any matters before the District over which you had supervision, direct involvement, or responsibility while employed by the LCB; 4. Lobbying, that is representing the interests of any person or employer before the District 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 reviered by the District, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the LCB, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the District so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the District. Once again, however, your activity in this respect should not be revealed to the District. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the LCB 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 District your representation of, or work for your new employer. Mr. Charles H. Trautwein August 8, 1985 Page 5 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 Assistant Supervisor, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Liquor Control Board, 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. Your governmental body, for the purpose of the one year representation restriction, would be the Philadelphia District Office, District 1. 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 Sinc ohn J. C no Gener. Counsel L