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HomeMy WebLinkAbout84-516 LewisJohn Z. Lewis Public Accountant P.O. Box 312 Church Road Hershey, PA 17033 Dear Mr. Lewis: Manny Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 January 31, 1984 ADVICE OF COUNSEL RE: Representation, Restrictions, Section 3(e) 84 -516 This responds to your letter of January 17, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask what restrictions you might face following the termination of your employment with the Commonwealth pursuant to the provisions of the Ethics Act. Facts: You indicate that on December 14, 1983, you retired from state service. Prior to your retirement you served as an Accountant III with the Governor's Executive Office, Office of the Budget, Comprollers Operations. In this capacity, you were assigned to the Department of Transportation as Supervisor of the Pre -Audit Section. In this capacity, you operated under a job description (incorporated herein by reference) which indicates that you undertook the following activities: 1. a variety of supervisory accounting duties associatted with classification, analysis, and reporting of Department financial data related to the pre -audit functions; 2. supervising a large staff of professional and clerical subordinates engaged in the audit functions of checking cross codings on various documents and transactions, reviewing and auditing travel expense vouchers and hotel orders, reviewing all commitment and expenditure documents and completing forms for transmittal of expenditure documents. State Ethics Commission • 308 Finance Building • Harris Pennsylvania John Z. Lewis January 31, 1964 Page 2 Fundamentally, you were involved in insuring that uniform accounting standards and principles were applied to all of the above actions within the Department of Transporation. In addition, you directed and coordinated all pre -audit activites including the signing and reviewing all work and providing professional accounting guidance and assistance on special problems. You participated in establishing of pre -audit policy for the Department, training field personnel with the Department of Transportation, and implementing programs for the processing of documents through the pre -audit unit. Upon termination of your service with the Commonwealth, you would like to undertake activities including those associated with processing documents through the Bureau of Motor Vehicles within the Department of Transportation as a full agent -- for the issuance of temporary license plates -- and a motor vehicle messenger service. Both of these services include charging customers fees for the services rendered. Discussion: While employed with the Commonwealth, you were to be considered a "public employee" as that term is defined in the State Ethics Act. See 65 P.S. 402. Therefore, upon terminatioo of your employment with the Commonwealth, 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 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(e). As a former public employee, you must, for the calendar year following your termination of employment (December 14, 1983 to December 14, 1984) 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 Commonwealth. We must, however, review your request by asking the following questions: 1. What is the scope of the term an activity known as "representation "; and, 2. to which governmental bodies do the restictions and prohibitions against representation extend in your case? The Ethics Commission's regulations provide that the term "representation" should include the following activities: John Z. Lewis January 31, 1984 Page 3 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 employee. 51 P.S. Code 1.1. Further, the Ethics Commission has determined that the prohibited activity described as "representation" in Section 3(e) extends to such activities as: 1. personal appearances before the governmental body with which you are deemed to have been associated, including but not limited to negotiation or re- negotiation of contracts; 2. attempts to influence governmental body or bodies with which you have been associated; 3. participation in any manner before these governmental bodies on any matter over which you had supervision, direct involvement, or responsibility while employed by the Commonwealth; 4. lobbying, that is representing the interest of any person before the governmental body or bodies with which you may have been associated in relation to legislation, regulations, etc. See Russell, 80 -048 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 a proposal) has been held to constitute an attempt to influence your former governmental body or bodies should such a proposal be presented to or reviewed by those bodies with which you are deemed to have been associated. Therefore, such activity is prohibited. 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 that governmental body or those bodies with which you may be deemed to have been associated has the potential for influencing the decision of those entities. Also, where you know or should know that a submission or proposal that you might make to an entity other than the governmental body or bodies with which you are deemed to have been associated will be reviewed by those entities with which you have been associated, your name should not appear on such a proposal. See Anderson, 83 -014. John Z. Lewis January 31, 1984 Page 4 While the restrictions apply to you for the one year period following your termination of service with the state vis -a -vis those governmental bodies or that governmental body with which you are deemed to have been associated, you may, nevertheless, work for an employer or on your own behalf and may within the one -year period, following your termination of service, engage in the following activities: a. You may administer rather than negotiate or re- negotiate any contract that exist or is to be awarded to any future employer or client so long as the contract or sub - contract is awarded or entered into without the inclusion of your name as noted above. b. You may make general informational inquiries of the governmental body or the governmental bodies with which you are deemed to have been associated in general, so long as there is no attempt to influence those bodies 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 confidential information gained during your service as a public employee. d. You may appear and represent any person on behalf of any client or new employer before any entity or governmental body except those with which you have been deemed to have been associated while employed by the Commonwealth. Next, we must answer the question as to which governmental body or bodies the above referenced restrictions would be applicable. Specifically, in your capacity as Section Supervisor within the Comptroller's Office and assigned to the Department of Transportation should you be deemed to have been associated with the entire Department of Transportation, the Comptroller's Office within the Department of Transportation or the Office of Budget - Comptroller's Office? From the job description that you have provided and the organizational chart, we conclude that the governmental bodies with which you must be deemed to have been associated, include the Comptroller's Office within the Office of Budget (Governor's Executive Office) and the Comptroller's Office of the Department of Transportation. Accordingly, those restrictions outlined above and prohibited activities listed as Numbers 1 - 4 above must be observed with respect to the Comptroller's Office within the Office of Budget and the Comptroller's Office within the Department of Transportation. With respect to any other entities within the Department of Transportation or otherwise, you may undertake activities without regard to the restrictions against "representation" of any person. John Z. Lewis January 31, 1984 Page 5 Thus, Section 3(e) of the Ethics Act would not preclude you from offering services as a full agent with respect to the issuance of temporary license plates or providing motor vehicles messenger service to the Bureau of Motor Vehicles within the Department of Transportation. In this conclusion we assume that as a Supervisor within the Comptroller's Office as assigned to the Department of Transportation that you had no supervisory or direct authority over personnel within the Bureau of Motor Vehicles with whom you might be dealing as an agent for the issuance of temporary license plates or with respect to the motor vechicle messenger service which you propose. However, you must observe the restrictions outlined above (Numbers 1 - 4) and in the discussion herein within the first year after you leave state employment with respect to the Comptroller's Office -- Office of Budget and the Comptroller's Office -- Department of Transportation. Conclusion: Upon your termination of service with the Commonwealth, you will have became a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. Your conduct as a former public employee vis -a -vis the Comptoller's Office within the Office of Budget and the Comptroller's Office in the Department of Transportation must conform to the requirements in the Act described in this Advice and you should take note of the prohibited and allowable activities as discussed herein. As a former public employee you must file a Financial Interest Statement for each year that you held the position described above and for the year following your termination of service. Thus, a Statement of Financial Interests should be filed no later than May 1, 1984, which represents the filing required for the year following your termination of service. This Financial Interest Statement will record information for the calendar year 1983. 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. John Z. Lewis January 31, 1984 Page 6 This letter is a public record and will be made available as such. 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: Bruce Doman, Esquire Thomas Larson, Secretary Sharon Wright, Director Robert A. Bittenbender, Secretary Charles Sciotto, Director Robert Parsons Sincerely, Sandra S. C/ i sti anson General Counsel