HomeMy WebLinkAbout84-507 HockenberryRobert E. Hockenberry
c/o Biscontini Warehouse &
Distribution Company
232 Division Street
Kingston, PA 18704
MaJmg Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 17, 1984
ADVICE OF COUNSEL
RE: Former Employee, Section 3(e), Restricted Activities
Dear Mr. Hockenberry:
84 -507
This responds to your letter of January 12, 1984, in which you requested
advice from the State Ethics Commission.
Facts: You ask whether, as a former public employee of the Pennsylvania
Liquor Control Board, hereinafter LCB, you face certain restrictions upon your
activity.
Discussion: You indicate that you served with the LCB until January 1, 1984.
Your last position with the LCB was as a Liquor Distribution Manager III. As
a Liquor Distribution Manager III you served in the Logistics Bureau of the
Distribution Division within the Harrisburg Headquarters of the LCB. As such,
your job description which you have provided indicates that you were
responsible for the following activities:
1. planning, organizing, directing, and evaluating the functions and
activities of personnel assigned to the Distribution Center,
Operations, Division, Inventory, and Traffic Management Division of
the Bureau of Logistics;
2. developing, implementing, and maintaining an integrated cost
effective service delivery system to insure that adequate inventory
levels were maintained in distribution centers in State liquor
stores;
3. supervising the flow of merchandise from the time of determining
demand until sale was complete;
4. coordinating distribution center services and supervising the
acquisition and use of transportation services;
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Robert E. Hockenberry
January 17, 1984
Page 2
5. coordinating and participating in contract negotiations with public
warehouse, public carriers, and common carriers for the storage and
delivery of merchandise to stores;
6. participatir:; in planning u; future distribution center requirements
and proposed distribution center locations including participation
in preparation of specifications for distribution center contracts
and transportation contracts„ •
You indicate that you have been offereJ employment with Biscontini
Warehouse and Distribution Company, hereinafter Biscontini, as their General
Manager. Biscontini has offered you this employment wi ter the responsibility
of developing and establishing operating budgets for all major functions of
the Company; instituting programs to insure training and development of all
personnel; responsibility for physical assets of the Corporation including
buildings and equipment; and generally overseeing the operations of
Biscontini's several types of warehouse facilities.
Further, you indicate that although Biscontini currently has a
warehousing contract in Kingston, Pennsylvania, with the LCB, you, in your
position with the LCB, were not involved in the decision- making process of
writing, recommending, approving, or administering this particular contract:
with the LCB.
Discussion: Having reviewed your job description and given that you are
required to file a Financial Interests Statement while employed with the LCB,
we must conclude that you were a "public employee" during your tenure with the
LCB. Therefore, ipon termination of that employment, you became a former
"public employee" as a "former public employee" your conduct must conform to
the requirements of Section 3(e) of the Ethics Act as set forth below:
(e) No former official or public employee shah 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(e).
As a former public employee you must, ion- the first calendar year
following your termination of employment, refrain from "representation" as the
Commission has further defined that term vis-a-vis those governmental bodies
with which you may have been associated while employed by the LCB.
To review your request for advice we must begin by asking the questions:
1. what is the scope of the term and activity known as "representation "; and
2. to which governmental bodies do the restrictions and prohibitions against
representation extend in your case?
Robert E. Hockenberry
January 17, 1984
Page 3
We will address this latter question first. In your capacity as Liquor
Distribution Manager III, you were associated with the LCB and the
jurisdiction which you exercised and the authority you apparently had for
recommending and taking official action was pervasive throughout the LCB.
Therefore, we conclude that your area of authority and responsibility extended
to the LCB, in general. Thus, the one -year restriction set forth in Section
3(e) of the Ethics Act would apply to your "representation" of any person
before the LCB in general. Notwithstanding this conclusion, you would not be
precluded from "representing" any person before an agency other than the LCB.
Further, the Ethics Commission has determined that the prohibited activity
described as "representation" which you must avoid with respect to the LCB for
the one -year set forth in Section 3(e) applies to such activities as:
1. personal appearances before the governmental body -- here the LCB
-- with which you were associated, including but not limited to
negotiation or re- negotiation of contracts with the LCB, its
offices, or personnel;
2. attempts to influence the LCB or personnel;
3. participation in any manner before the LCB in a case or matter over
which you had supervision, direct involvement, or responsibility
while employed by the LCB; and
4. lobbying, that is representing the interests of any person before t
he LCB with respect to legislations, regulations, etc. See Russell,
80 -48 and Seltzer, 80 -044.
It should be noted that the mere act of preparing and signing with your
own name or having your name appear as the person who will serve in regard to
a proposal (such as technical advisor on the proposal) has been held to
constitute an attempt to influence your former governmental body should such a
proposal be presented to or reviewed by the LCB. Therefore, such a
presentation falls within the scope of activity which is prohibited by Section
3(c) of the Ethics Act. See Kilareski, 80 -054. This is because the inclusion
of your name as preparer or technical advisor on such a proposal to be
submitted to or reviewed by the LCB has the potential for influencing the
decision of the LCB -- the body with which you are associated and must,
therefore, be prohibited for the one -year period after you leave your
employment with the State. Also, where you know or should now that a
submission or proposal that you might make to an entity other than the LCB
would he reviewed by the LCB, your name should not appear on such a proposal
as outlined above. Anderson, 83 -014.
Robert E. Hockenberry
January 17, 1984
Page 4
While th2 above- referenced restrictions apply to you for the cne -year
period following your termination of service with the Commonwealth vis -a -vis
the LCB, you may, nevertheless, work for an employer such as Biscontini and
may within the one -year priod following your termination of service with the
LCB engage in the following activities:
A. You may administer rather than negotia'�.e or re- negotiate any
contract that exists or that is to be awarded to your future
employer, so long as the contract or sub - contract was awarded or
entered into without the inclusion of your name as noted above;
B. You may make general information inquiries of the LCB of
the ;iatu:•e made by the general public so long as there is no attempt
o influence the LCB as prohibited above;
C. You may utilize the knowledge and expertise gained during your
tenure as a public employee so long as you do not use any
confident'al information gained during your service as a public.
employee; and
D. You may appear and represent any person on behalf of any client or
new employer before any entity or governmental body except the LCB
as outlined above.
Conclusion: Upon your termination of service with the Commonwealth, you will
have become a "former public employee" subject to the restrictions imposed by
Section 3(e) of the Ethics Act. Your conduct as a former public employee must
conform to the requirements of the Act as described in this Advice and you
should take no of the prohibited and allowable activities as discussed above.
In addition, as a former public employee; you must file a Financial
Interest Statement for the each year in which you held the position described
above and 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.
Robert E. Hockenberry
January 17, 1984
Page 5
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.
SSC /rdp
cc: David Kerr, Executive Director
Phillip Joseph, LCB Personnel Officer
Sincerely,
ndra S. Ch/is lan
General Counsel