HomeMy WebLinkAbout89-585 HallacherMr. Paul M. Hallacher
1502 Green Street
Harrisburg, PA 17102
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 30, 1989
89 -585
Re: Former Public Employee; Section 3(g); Commerce Department;
Director of the Office of Enterprise Development
Dear Mr. Hallacher:
This responds to your letter of October 18, 1989, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether the Ethics Law presents any restrictions
upon your employment following your termination of service with
the Department of Commerce.
Facts: You resigned as Director of the Office of Enterprise
Development, Pennsylvania Department of Commerce, hereinafter
Commerce, on August 30, 1989 having completed ten years of State
service. Prior to that time you served in the Governor's Office
of Policy Development from November 1978. You are currently
under consideration for the position of the Associate Director
for Economic Development of the Institute of State and Regional
Affairs with the Pennsylvania State University, hereinafter Penn
State. The forgoing position involves assisting Penn State
Officials regarding the formulation and implementation of
economic development strategies. As one of the four state
related universities in Pennsylvania, Penn State receives funding
from several state agencies including Commerce. Examples of such
funding would be Ben Franklin Partnership funds which are
provided to Penn State through Commerce each year. In addition,
Penn State receives grants from the federal Appalachian Regional
Commission which federal program is administered by the Office of
Enterprise Development in Commerce. The position under
consideration is a new one designed to create coordination of the
various economic development activities of Penn State; funding is
made with Penn State funds through the Office of the Vice
President for Research and Technology Transfer. You conclude by
requesting an opinion as to what restrictions would be imposed
upon you if you were offered and accepted the above position.
Mr. Paul M. Hallacher
Page 2
Discussion: As a Director for Office of Enterprise Development
in the Department of Commerce, you are to be considered a "public
employee" within the definition of that term as set forth in the
Public Official and Employee Ethics Law and the Regulations of
this Commission. 65 P.S. S402; 51 Pa. Code §1.1. This
conclusion is based upon the job description, which when
reviewed on an objective basis, indicates clearly that the power
exists to take or recommend official action of a non - ministerial
nature with respect to contracting, procurement, planning,
inspecting, administering or monitoring grants, leasing,
regulating, auditing or other activities where the economic
impact is greater than de minimus on the interests of another
person.
Consequently, upon termination of employment, you would
become a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics Law. Section 3(g) of the
Ethics Act provides that:
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with
promised or actual 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. §402.
Initially, to answer your request the governmental body
with which you were associated while working with Commerce must
be identified. Then, the scope of the prohibitions associated
with the concept and term of "representation " must be reviewed.
The term "governmental body with which a public official or
public employee is or has been associated" is defined under the
Ethics Law as follows:
Section 2. Definitions.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is
or has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices
within that governmental body. 65 P.S. §402
Mr. Paul M. Hallacher
Page 3
Thus, the governmental body with which you have been
associated upon the termination of employment would be Commerce.
Therefore, within the first year after termination of service
with Commerce, Section 3(g) of the Ethics Law would apply and
restrict representation of persons or new employers vis -a -vis
Commerce.
The Ethics Law does not affect one's ability to appear
before agencies or entities other than with respect to the former
governmental body. Likewise, there is no general limitation on
the type of employment in which a person may engage, following
departure from their governmental body. It is noted, 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.
In respect to the one year representation the Ethics Law
defines "Represent" as follows:
Section 2. Definitions.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the following:
personal appearances, negotiations, lobbying
and submitting bid or contract proposals
which are signed by or contain the name of a
former public official or public employee.
65 P.S. 5402.
In addition, the term "Person" is defined as follows under
the Ethics Law:
Section 2. Definitions.
"Person." A business, governmental
body, individual, corporation, union,
association, firm, partnership, committee,
club or other organization or group of
persons. 65 P.S. 5402.
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
Mr. Paul M. Hallacher
Page.4
1. Personal appearances before the former governmental body
or bodies, (that is Commerce), including, but not limited to,
negotiations or renegotiations in general or as to contracts with
the Commerce;
2. Attempts to influence Commerce;
3. Submission of bid or contract proposals which are signed
or contain the name of the former public official /employee.
4. Participating in any matters before Commerce over which
there was supervision, direct involvement, or responsibility
while employed by that governmental body;
5. Lobbying, that is representing the interests of any
person or employer before Commerce in relation to legislation,
regulations, etc.
The Commission has also held that listing one's name as the
person who will provide technical assistance on such proposal,
document, or bid, if submitted to or reviewed by Commerce
constitutes an attempt to influence the former governmental body.
Therefore, within the first year after termination of service,
you 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 Commerce, is not prohibited as
representation.
You may, assist in the preparation of any documents
presented to Commerce so long as you are not identified as the
preparer. You may also counsel any person regarding that
person's appearance before Commerce. Once again, however, the
activity in this respect should not be revealed to the Commerce.
Of course, any ban under the Ethics Law would not prohibit or
preclude the making of general informational inquiries of
Commerce to secure information which is available to the general
public. This, of course, must not be done in an effort to
indirectly influence these entities or to otherwise make known to
the governmental body the representation of, or work for the new
employer.
Finally, the Commission has concluded that the
administering of an existing contract as opposed to negotiating
or renegotiating a contract would not be prohibited by the
Ethics Law.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value or no public
Mr. Paul M. HallaCher
Page 3
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Conclusion: As a Director of the Office of Enterprise
Development in the Department of Commerce, you are to be
considered a "public employee" as defined in the Ethics Law.
Upon termination of service with Commerce, you would become a
"former public employee" subject to the restrictions imposed by
Section 3(g) of the Ethics Law. As such, your conduct should
conform to the requirements of the Ethics Law as outlined above.
The propriety of the proposed conduct has only been addressed
under the Ethics Law.
Further, should service be terminated, as outlined above,
the Ethics Law also requires that a Statement of Financial
Interests be filed for the year following 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.
such.
This letter is a public record and will be made available as
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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Vincent . Dopko,
Chief Counsel