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HomeMy WebLinkAbout85-577 LolloMr. Robert E. Lollo 6231 Hocker Drive Harrisburg, PA 17111 State Ethics Commission 308 Finance Building P. 0. Box 11470 Harrisburg, Pa. 17108 -1470 August 29, 1985 ADVICE OF COUNSEL 85 -577 Re: Former Public Employee; Section 3(e), Administrative Officer III, Department of Public Welfare Dear Mr. Lollo: This responds to your letter of July 26, 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 Department of Public Welfare, hereinafter the Department, as an Administrative Officer III. You are considering leaving state service to accept a position in the private sector with a consulting firm that provides services under contract to state, federal and local government agencies and to private industry. This consulting firm currently has a contract with the Department of Public Welfare and plans to bid on future contracts. A portion of your work with this firm would be to provide consulting services under their current contract and in future contracts, if awarded. You indicate that you have had no responsibility for negotiating, monitoring, or the selection of this firm for their current contract, and that you have not had input into any request for proposal this firm may bid on in the future. In your position with the Department you are assigend to the Bureau of Budget within the Office of Fiscal Management. Mr. Robert E. Lollo August 29, 1985 Page 2 The Bureau is responsible for assisting the Program Offices and the Secretary in devleoping a budget request, justifing the request to the Governor's Office and the Legislature, and monitoring expenditures against the approved budget plan. In addition to the budget process, other activities related to the fiscal administration of programs occur. In your position, direct responsibility is maintained for the budgetary and fiscal activities of the following programs: Adult services block grants, Human Services Development Fund, Public Assistance Transportation Block Grant, technical assistance grants to counties, emergency shelter programs, attendant care and state general hospitals. These programs have a total dollar value of $157,000,000. In addition to the foregoing, you also develop the Department's budget request for the county programs administered by the Office of Policy, Planning and Evaluation. You act as primary liaison to the Governor's Office of the Budget. You also prepare fiscal and statistical data for use in budgetary information relating to the county programs. You establish accounting records, including allocation and allotment schedules, for the county programs which are posted to the centralized accounting system and initiate and reconcile expenditures from two states and six federal appropriations with approved allocations and allotments. You also participate in the development of the tentative, primary and final allocations for each of the county programs covering the 67 counties. You are responsible for final departmental certification of 193 county expenditure reports totalling over $27,000,000. You also initiate correspondence approving the reports or recommending resolution of outstanding issues to the Office of Policy, Planning and Evaluation. You represent the Office of Fiscal Management in meetings with the program offices when programmatic issues and new initiatives are discussed and you provide technical assistance to program offices, county program administrators, concerning policy and fiscal issues related to the county programs. 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. Mr. Robert E. Lollo August 29, 1985 Page 3 As an Administrative Officer III 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 Peters, 82 -005; Wright, No. 313 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). 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 Fiscal Management including all bureaus and divisions therein. Additionally, as you maintained direct resposibility for the budget and fiscal activities of a number of grant and assistance programs, your must be deemed to have had influence within the program offices relating to the specific programs outlined in your job description. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office of Fiscal Management, including the bureaus and divisions therein, as well as the program offices as previously identified, hereinafter collectively referred to as the 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. Mr. Robert E. Lollo August 29, 1985 Page 4 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 conflict of interests 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 Offices, including, but not limited to, negotiations or renegotiations on contracts with the Offices; 2. Attempts to influence 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. Mr. Robert E. Lollo August 29, 1985 Page 5 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 hid, 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 Administrative Officer III, 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. Your governmental body, for the purpose of the one year representation restriction, is the Office of Fiscal Management, including the bureaus and divisions therein, as well as the Program Offices relating to the specific grant and assistance programs as outlined previously. 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. Mr. Robert E. Lollo August 29, 1985 Page 6 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 ncerely, John Jain General Counsel