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HomeMy WebLinkAbout85-582 PlowmanJack W. Plowman, Esquire Plowman and Spiegal Grant Building Pittsburgh, PA 15219 -2397 Dear Mr. Plowman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 September 17, 1985 ADVICE OF COUNSEL 85 -582 Re: Former Public Employee; Section 3(e), Deputy Secretary for Public Works, Department of General Services This responds to your letter of August 13, 1985, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon the potential employment of a former deputy secretary employed by the Department of General Services. Facts: You have requested the advice of the State Ethics Commission on behalf of your client, a construction company that seeks to employ a consulting firm operated by Mr. Merle H. Ryan. Mr. Ryan was formerly employed by the Pennsylvania Department of General Services as the Deputy Secretary for Public Works. The construction firm seeks Mr Ryan's services in relation to contracts that it has or will be obtaining with the Commonwealth, including contracts administered by the Department of General Services. Mr. Ryan's former position involved highly responsible professional and administrative work directing the activities responsible for the construction, improvement, equipping, furnishing and acquiring of public buildings for the use of the Commonwealth. In this position Mr. Ryan was responsible for the coordination, administration, and management of all programs and functions associated with the planning, layout, construction, inspection, improvement, and renovation of a large variety of public buildings, airports, hospitals, schools and colleges, marine terminals and port improvements, dams and reservoirs, flood control projects, athletic fields, state parks, etc. Work involved responsibility for developing policy, giving direction and coordination to each program, and serving as expert and principal advisor to Jack W. Plowman Esquire September 17, 1985 Page 2 the Secretary concerning each program. General supervision was exercised, through bureau di rectors and staff supervisors, over a professional and technical staff. Mr. Ryan's work was performed under the general direction of the Secretary, with assignments in the form of broad objectives or planned projects. In addition to the foregoing, Mr. Ryan served as advisor to the Secretary on all public works projects and maintained budgetary control over all expenditures on all projects so as to meet requirements established by the Governor's Office of Administration and Budget and the Comptroller. He was also responsible for coordinating with officials and representatives of all departments and agencies of state government to provide guidance and technical counsel regarding any proposed construction, renovation, or building improvement they may be anticipating or planning; dealing directly with members of the legislature, the governor's staff, and other high -level state officials regarding problems on programs analogous to the responsibilities of the incumbent; and with input from professional engineering and architectural societies and organizations regarding consultations of state -of- the -art of civil- structural programs. You have posed a series of questions regarding restrictions that may be placed upon Mr. Ryan in his potential employment under the Ethics Act. 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 Deputy Secretary for the Department, Mr. Ryan was 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 his job description, which when reviewed on an objective basis, indicates clearly that he had 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 Eckert, 84 -554, Nelson, 85 -008. Consequently, upon termination of this employment, he became a former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Jack W. Plowman, Esquire September 17, 1985 Page 3 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 Mr. Ryan was 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 Mr. Ryan's duties and responsibilities and based upon the facts outlined above, his jurisdiction, responsibility, influence and control appears to have been exercised within the Department generally. Thus, the "governmental body" with which he was "associated" would be the Department and all divisions and bureaus therein. This is so, in light of the high -level management position wherein Mr. Ryan served as an advisor to the Secretary and in which he was responsible for formulating policy and representing the Department at all levels. It is also noted that Mr. Ryan appears to have had some responsibility in relation to other state agencies. As such, it is cautioned that if Mr. Ryan exercised responsibility or control over the decisions by other agencies or departments or on specific projects his "governmental body" may be further extended. In this respect, he may wish to seek the further advice of the Commission relating to specific situations. Therefore, within the first year after he would leave the Department, Section 3(e) of the Ethics Act would apply and restrict his "representation" of persons or new employers vis -a -vis the Department. The Ethics Act would not affect Mr. Ryan's ability to appear before agencies or entities other than with respect to the Department. Likewise, there is no general limitation on the type of employment in which he may engage, following his departure from the Department except when noted infra. 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 Jack W. Plowman, Esquire September 17, 1985 - Page 4 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 Department, including, but not limited to, negotiations or renegotiations on contracts with the Department; 2. Attempts to influence the Department; 3. Participating in any matters before the Department 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 Department 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 Department, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after he leaves the Department, he should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Department, is not prohibited as "representation." See Kotalik, 84 -007. Jack W. Plowman, Esquire September 17, 1985 Page 5 Mr. Ryan may, assist in the preparation of any documents presented to the Department so long as he is not identified as the preparer. He may also counsel any person regarding that person's appearance before the Department. Once again, however, his activity in this respect should not be revealed to the Department. Of course, any ban under the Ethics Act would not prohibit or preclude him from making general informational inquiries of the Department 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 Department his representation of, or work for his new employer. Finally, the Commission has concluded that if a former employee is administering an existing contract as opposed to negotiating or renegotiating a contract, his activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. In addition to the foregoing, and in order to provide a complete response to your question, you should also be aware of the special provisions of the Ethics Act relating to executive -level employees. In this respect the Act provides that: Section 3. Restricted activities. (g) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 403(g). Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, Jack W. Plowman, Esquire September 17, 1985 Page 6 the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a deicison. 65 P.S. 402. As a Deputy Secretary, within the Department, Mr. Ryan is clearly within this definition. Thus, if he has to any extent participated in the recruiting of any corporation to initiate operations, open a new plant, facility or branch in the Commonwealth and Commonwealth funds were employed as an inducement, he would be prohibited for a period of two years from the date of his termination from being employed by that corporation. Conclusion: As a Deputy Secretary for Public Works, Mr. Ryan is to be considered a "public employee" as defined in the Ethics Act. Upon termination of his service with the Department of General Services, he would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, his conduct should conform to the requirements of the Ethics Act as outlined above. His governmental body, for the purpose of the one year representation restriction, is the Department as well as all divisions and bureaus therein. Additionally, as set forth, the further advice of the Commission may be necessary in order to determine if this restriction_ extends to any other department or agency. Also it is noted that the one year restriction becomes operative from the formal date of termination. See; Wagner, 80 -042; Seltzer, 80 -044. Further, you are reminded that the Ethics Act also requires the filing of a Statement of Financial Interests for the year following the 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. Jack W. Plowman, Esquire September 17, 1985 Page 7 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 Sincer ohn J. C. in General ounsel