HomeMy WebLinkAbout85-593 BocianMailing Address
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108- 1470
October 30, 1985
ADVICE OF COUNSEL
Mr. Louis Bocian 85 - 593
1023 West Areba
Hershey, PA 17033
Re: Former Public Employee; Section 3(e), Computer Systems Analyst,
Department of Education
Dear Mr. Bocian:
This responds to your letter of October 2, 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 Education.
Facts: You have indicated that on October 30, 1985, you will be retiring from
state employment. You are currently employed by the Pennsylvania Department
of Education as a computer systems analyst. In that position you are the
Chief of the Division of Plans and Field Technical Support in the Department's
Bureau of Informational Services. In this position you were involved and
responsible for the following activities:
Development of the Bureau of Information Systems' Planning and Evaluation
activities.
Development of short -, mid- and long -range plans to meet the Department's
information needs, including EDP Multi -Year Plan.
Preparation and maintenance of security studies and directives for the
Department and the Bureau.
Preparation of feasibility and cost - effectiveness studies to install,
upgrade, or convert EDP systems.
Preparation of Request for Proposal (RFP) for computer equipment;
preparation of Electronic Data Processing Equipment Requests (EDPER);
preparation of Computer Software Requests (CSR) for resource acquisition as
required.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Louis Rocian
October 30, 1985
Page 2
Coordination and consultation with manufacturers on technical computer
matters as they relate to selection and acquisition of hardware and software.
Development of internal directives pertaining to EDP activities.
In addition to the foregoing, you were also responsible and performed the
following activities:
Serves as the Department liaison with Department of General Services on
all EDP procurement actions.
Assists all Department offices in the planning and preparation of their
EDP multi -year and contingency plans.
Coordinates all acquisition and allocation actions for EDP equipment,
software, and related resources within the Department. Establishes
departmental microcomputer usage policies.
Advises on projected EDP expansion requirements within the Department to
effectively support BIS budgeting, planning, and management decisions.
Provides technical support to field agencies on all matters regarding the
acquisition and employment of EDP services.
Establishes policies and procedures necessary for the overall control of
EDP hardware within BIS to include receipt, installation, accountability,
inventory, and disposition.
Develops policies and standards which govern data communications
interconnectivity, data accessibility, and data transfer between PDE and local
educational agencies (LEAs).
You have indicated that upon retirement you will be obtaining a position
with Maintenance Corporation of .America as a sales coordinator. In this
capacity you will represent that Corporation regarding its sales, particularly
relating to a third party maintenance contracting for computer services. The
Corporation currently has contracts with the Pennsylvania Department of
Education and the Pennsylvania Department of Health. You indicate that you
were not involved in the acquisition or the award of these contracts while
employed by the Commonwealth. You have requested the advice of the State
Ethics Commission as to the permissible scope of your activities while
employed by this Corporation.
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. Louis Bocian
October 30, 1985
Page 3
As Chief of the Plans and Field Technical Support Division for the
Department of Education's Bureau of Information Systems, 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. 5402; 51
Pa. Code 51.1. 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 Mulvihill, 83 -606.
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 hody.
65 P.S. 403.
Initially, to answer your request we must identify the "governmental
hody" 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 hody" with which an individual may he
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 the
Executive Deputy Secretary including all bureaus and divisions thereunder,
hereinafter referred to as the Office. This is particularly so, in light of
the fact, that your duties and responsibilities as per your job description
indicates that you had wide ranging authority and descretion in relation to
planning and recommending policies and procedures for the Department data
processing system. Thus, the "governmental hody" with which you have been
"associated" upon the termination of your employment would he the Office.
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 Office.
Mr. Louis Rocian
October 30, 1985
Page 4
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Office. 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 Office), including, but not
limited to, negotiations or renegotiations on contracts with the Office;
2. Attempts to influence the Office;
3. Participating in any matters before the Office 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 Office 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
Mr. Louis Bocian
Octoher 30, 1985
Page 5
the Office, 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
Office so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Office. Once
again, however, your activity in this respect should not he revealed to the
Office. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Office to
secure information which is available to the general puhlic. 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 Office 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 he prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Conclusion: As Chief of the Plans and Field Technical Support Division in the
Pennsylvania Department of Education's Bureau of Information Systems, you are
to be considered a "puhlic employee" as defined in the Ethics Act. Upon
termination of your service with the Department, 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 hody for the purpose of the
one year representation restriction is the Office of the Executive Deputy
Secretary and the bureaus and divisions 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.
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.
Mr. Louis Bocian
October 30, 1985
Page 6
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 he made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
JJC /sfb
Sincerely,
John
Gen Counsel