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HomeMy WebLinkAbout89-598 HeitczmanMr. George A. Heitczman Law Offices O'Hare & Heitczman P.O. Box 1446 18 East Market Street Bethlehem, PA 18018 Dear Mr. Heitczman: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 27, 1989 89 -598 Re: Conflict of Interest, Public Employee, Former Public Employee, County, DPW, Child Support System. This responds to your letters of October 13, and November 28, 1989 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law imposes any prohibition or restrictions upon the county director of domestic relations from becoming conditionally employed by a business entity that would seek to enter contractual obligations with the Department of Public Welfare as to a program for computerizing statewide child support systems. Facts: At the authorization of Fred Barth who is presently the Director of the Domestic Relations Section of Berks County, you inquire regarding any restrictions under the Ethics Law if Mr. Barth would terminate his public service followed by employment with the Davidson Group which is a Management and Systems Design Consulting Group headed by William M. Davidson, the former Director of the Domestic Relations Section of North Hampton County. The Davidson Group was formed in October 1988 and is incorporated under the laws of the Commonwealth of Pennsylvania. The Department of Public Welfare, hereinafter DPW, is currently considering the development of the statewide computerized child support system and anticipates submitting requests for proposals, RFP's, which will be generated for both public and private sector Mr. George A. Heitczman Page 2 work. "Private sector work" is understood to mean work that would be funded by and in control of a public body such as DPW and one in which the Davidson Group would be a DPW representative through a contractual obligation. "Private sector work" is understood to mean work by a private organization which would be the representative of another private organization which in turn would be contractually obligated to a public body such as DPW. The Davidson Group intends to bid on the public sector contract when an RFP is generated and, if unsuccessful, would then seek a vendor to bid on a private sector RFP. At the time of the response to either a public or private sector RFP, the Davidson Group is desirous of "including" Mr. Barth. Until July 10, 1989, Mr. Barth served as Chairman of the Domestics Relations Association of Pennsylvania (DRAP) Technical Advisory Committee, a position to which he was appointed in January of 1988. DRAP is a Pennsylvania statewide voluntary organization of child support workers comprising approximately seven hundred members who vote to elect a board; Mr. Barth has been a board member and has served as Chairman of the DRAP Technical Advisory Committee. Until April of 1989, the IV -D statewide automation project was a phase of the Pennsylvania courts automation master plan which had been a cooperative effort between DPW and the courts. However, effective April 20, 1989, the courts withdrew from participation in the project and all work on the project ceased and responsibility for the program was then turned over to DPW. In May of 1989, at the request of the Executive Director of the Bureau of Child Support Enforcement, Mr. Barth attended a planning meeting at the Willow Oak Building in Harrisburg to discuss starting the IV -D statewide automation process once again and a steering committee was formed and Mr. Barth attended the meeting as a representative of DRAP, but not as an employe of Berks County or the State. The committee was formed in order to receive and disseminate information concerning any proposals that might be made to automate the child support enforcement system in Pennsylvania and Mr. Barth as the DRAP appointee to the steering committee did not have any access to any propriety information or to any information that was not available to the public. As Chairman of the DRAP Technical Advisory Committee, Mr. Barth drafted the committees mission statement and gathered information from all county domestic relations sections to ensure the involvement of user communities. During his work with IV -D automation steering committee, Mr. Barth assisted in the preparation in the "Planning APD for Pennsylvania's Automated Child Support Enforcement System" which was completed in June of 1989. Thereafter Mr. Barth participated in a visit to Michigan in June of 1989 to study their statewide child support automation project. In addition, Mr. Barth made four or five visits to other states as part of a transfer feasibility study to gather information for determining the best candidate for technology transfer. Mr. Barth did not participate in any visits to any Mr. George A. Heitczman Page 3 states other than Michigan. As part of his work with DRAP Technical Advisory Committee and IV -D Automation Steering Committee, Mr. Barth had no access to any privileged information and committee meeting notes were routinely distributed to all interested parties and through the DRAP board president to all Pennsylvania Domestic Relations Section Directors. Mr. Barth was not involved in the preparation of any requests for proposals and of this date no RFP's have been issued as to the project. Effective July 10, 1989 Mr. Barth was no longer associated with the DRAP Board of Directors and consequently was longer connected with the IV -D Automation Steering Committee. It is contemplated that if a contract were awarded to the Davidson Group and prior to Mr. Barth doing any work, Mr. Barth would resign from the Berks County Domestic Relations Section to work full -time for the Davidson Group in the proposal in response to the RFP would so state. You conclude by requesting advice as to whether there would be any conflict under the Ethics Law as to the submission of a bid by the Davidson Group for public /private sector work which would indicate that Mr. Barth would participate as a full time employee after the bid was accepted. You express your view that the Ethics Law should not bar the activity because any contracts that the Davidson Group would seek would be directed toward a comprehensive statewide solution for child support automation and would not involve any matters that are unique to Berks County nor involve any appearances before Berks County. Discussion: As the director of Berks County, Mr. Barth is defined under the Ethics Law. provisions of the Ethics Law applicable to him. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. Section 3. Restricted activities. for the Domestic Relations Section a public employee as that term is As such, he is subject to the and the restrictions therein are (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. In addition, Section 3(g) of the Ethics Law provides: (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. Mr. George A. Heitczman Page 4 Section 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 and no public 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. The following terms are defined under the Ethics Law: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member or his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "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. Mr. George A. Heitczman Page 5 "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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. As to Section 3(a) quoted above, this provision of law would essentially restrict Mr. Barth from using the authority of office or any confidential information to obtain a private pecuniary benefit for himself. In applying Section 3(a) to the instant matter, it would appear that there have been negotiations between Mr. Barth and the Davidson Group regarding his employment if an RFP is awarded as to the statewide child support program. Further, the inclusion of Mr. Barth's name in a proposal for the award of a contract to the Davidson Group would occur when Mr. Barth would still be a county employee. In this regard, if Mr. Barth's name would be included in the proposal at the time of the submission of the RFP, Mr. Barth would be using the authority of his office through the status of his position as well as the knowledge and expertise he has gained during his public employment to enhance the award of a contract to the Davidson Group. In addition to aiding the Davidson Group in obtaining the contract, Mr. Barth derivatively would obtain a private pecuniary benefit through his subsequent employment with the Davidson Group. Accordingly, although the Davidson Group could submit the proposal to DPW, Section 3(a) would prohibit the inclusion of Mr. Barth's name within the proposal. Likewise, Section 3(a) would restrict conveying the fact or making known by other means that Mr. Barth would work on the project if the Davidson Group would be awarded the contract. Turning to the applicability of Section 3(g) of the Ethics Law, if Mr. Barth were to resign, he would become a former public employee subject to the provisions of Section 3(g) quoted above. Section 3(g) of the Ethics Law would restrict Mr. Barth as former public employee from representing any person before his former governmental body for a period of one year after termination of service. Initially the governmental body with which Mr. Barth has been associated must be determined. In this case it would appear that Mr. Barth's governmental body would be Berks County. Mr. George A. Heitczman Page 6 The foregoing is based upon the express assumption that. Mr. Barth has not had any direct, or indirect or advisory involvement with DPW. 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. 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: 1. Personal appearances before one's former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals to the governmental body which are signed or contain the name of the former public official /employee. 4. Participating in any matters 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 in relation to legislation, regulations, etc. before the former governmental body. Therefore, Mr. Barth as an employee of the Davidson Group for a period of one year after termination of service would be limited in his representation before his former governmental body which would be Berks County, subject to the qualifications noted above. 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 Mr. George A. Heitczman Page 7 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Conclusion: As the Director of the Domestic Relations Sections in Berks County, Mr. Barth is a public employee subject to the provisions of Section 3(a) of the Ethics Law. As a public employee, Section 3(a) of the Ethics Law would restrict the inclusion of the name of Mr. -Barth in a proposal submitted by the Davidson Group to the Department of Public Welfare for the award of a contract as to the development of a statewide computerized child support system. If Mr. Barth resigns his public employment, he would be a former public employee subject to the restrictions of Section 3(g) of the Ethics Law 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 S2.12. Sincerely, Vincent" Dopko, Chief Counsel