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HomeMy WebLinkAbout84-531 RobertsMr. William I. Roberts, Director P.O. Box 11424 Harrisburg, PA 17108 Mailin Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 February 28, 1984 ADVICE OF COUNSEL 84 -531 RE: Job Training Partnership Act; Consulting Service; Public Employee Dear Mr. Roberts: This responds to your letter of January 17, 1984, in which you requested advice from the State Ethics Commission. Facts: You are the Director of the Bureau of Job Training Partnership in the Department of Labor and Industry. As such, you have the responsibility to oversee the administration of the Job Training Partnership Act (JTPA) in Pennsylvania. JTPA is the most recent job initiative of the federal government and provides approximately 140 million dollars for employment projects in Pennsylvania. There are two major titles under the Act. Title II provides the bulk of the money for training. This money, which is distributed by formula, is channelled through the Service Delivery Areas (SDA), which are the local entities that are functions of local government which administer the funds on a local level by way of specified formulas. Title III funds are targeted at dislocated workers and they are obligated by the State through the SDA, but on a program -by- program basis. The Bureau reviews the SDA plans for spending of the Title II and Title III funds, and makes recommendations to the Secretary of Labor, who makes the final funding decisions. You intend to start a consulting company that works with labor unions and private industries in developing training programs. These entities would take advantage of the funds available through both state and federal employment programs. Such funds could include, but would not be limited to, the federal JTPA funds available through the state. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. William I. Roberts, Director February 28, 1984 Page 2 You are concerned with what restrictions the Ethics Act may place upon your activities, and you have therefore, asked the following questions: 1. Whether, if you start a company that does not contain your name, the name of the company may appear on an application; 2. Whether, if you have written a proposal and in the course of e'eviewing it, staff from the state need to clarify an issue or a point, you may work with the Bureau by providing the necessary information; and, 3. Whether, if a proposal has been accepted by the state for funding and there are questions that need to be answered in the contracting peocess, you can work with the Bureau staff in developing the contract. fi scussion: As the Director of the Bureau of Job Training Partnership in the Department of Labor and Industry, hereinafter BJTP, you were a "public employee" subject to the Ethics Act, 65 P.S. 401. et seq. Upon leaving BJTP, you became a "former public employee." Section 3(e) of the Act, applicahle to you as a "former public employee ", provides: (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(3). From the organizational chart which you enclosed with your request for advice, we conclude that the governmental body with which you are associated is the Bureau of Job Training Partnership, the Deputy Secretary for Labor, and any staff from either of those divisions. This is because your area of authority and responsibility apparently extended only to those entities. Thus, the one -year restriction applies on to your representation of persons before either of those entities. You would, therefore, not be precluded from working with state agencies other than the Bureau of Job Training Partnership or the Deputy Secretary for Labor for the year after your termination of employment with the Commonwealth. The Ethics Commission has determined that the "representation" prohibited by Section 3(e) extends to such activities as: Mr. William I. Roberts, Director February 28, 1984 Page 3 1. personal appearances before the governmental body with which you were associated, here the Bureau of Job Training Partnership and the Deputy Secretary for Labor, including but not limited to negotiations on contracts with those bodies; 2. attempts to influence those governmental bodies; 3. participation in any matter before either of those bodies in any case over which you had supervision, direct involvement, or responsibility while employed by the Department of Labor and Industry; 4. lobbying, that is representing the interests of any person before these governmental bodies in relation to legislation, regulations, award of contracts, etc. See Russell, 80 -048; and Seltzer, 80 -044. The mere act of preparing and signing a proposal or of having your name appear as the person who will serve in regard to the proposal (such as technical advisor) constitutes an attempt to influence your former governmental body, should such a proposal be presented to or be reviewed by either the Bureau of Job Training Partnership or the Deputy Secretary for Labor. See Kilareski, 80 -054. This is because the inclusion of your name on the proposal has the potential of influencing the decision of the governmental body with which you are associated and is, therefore, prohibited within the one -year period after you leave public employment. While these restrictions apply to you for one year following your termination of service with the Commonwealth vis -a -vis the Bureau of Job Training Partnership, you may, nevertheless, engage in the following activities even within the one -year period: a. administer, rather than negotiate or re- negotiate, any contract that exists or is to be awarded to any of your clients so long as the contract is entered into without the inclusion of your name as noted herein; b. make general informational inquiries of the Bureau of Job Training Partnership and the Deputy Secretary for Labor so long as no attempt is made to influence those bodies as prohibited and discussed above; c. 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 that time; and, Mr. William I. Roberts, Director February 28, 1984 Page 4 d. appear and represent any person on bE,aF r +. any client or new employer before any other governmental body, except before the Bureau of Job Training Partnership or the Deputy Secretary for Labor. Finally, the specific questions which you outlined in your request for advice or addressed below: 1. You ask whether, under the Ethics Act, the name of a company which you begin, which does not contain your name, may appear on an application. In light of the above discussion, you, or any firm, which you begin or work for, would not generally be precluded from doing business with any state agencies other than the Bureau of Job Training Partnership or the Deputy Secretary for Labor. Restrictions on your activities, as discussed above, apply to your personal appearance and representation of clients or firms before either of the governmental bodies with which you were associated. A firm which you might own, manage, or work for could do business with the Bureau of Job Training Partnership, the Deputy Secretary for Labor, or any other state agency or entity so long as you do not personally appear or represent that firm or client before the governmental bodies with which you were associated, and do not allow you name to appear on any documents which are submitted to the Bureau of Job Training Partnership or the Deputy Secretary for Labor or to other entities where you know or have reason to know that these documents will be submitted to either the Bureau or the Deputy Secretary for review /approval. • 2. You ask whether, if you have written a proposal, and in the course of reviewing it, the staff from the state need to clarify an issue or a point, you may work with the Bureau by providing the necessary information. Where a contract has not yet been approved, any personal appearance before the Bureau with regard to that contract would be viewed as possibly "negotiating" and prohibited as representation under Section 3(e) of the Ethics Act. Again, an other employee or member of your consulting company would be ahle to clarify an issue or a point, or provide the necessary information to the Bureau so long as you personally refrain from engaging in such activity before the award or granting of the contract or funds. Mr. William I. Roberts, Director February 28, 1984 Page 5 3. Finally, you ask whether, if a proposal has been accepted by the state and there are questions that need to be answered in the contracting process, you may work with Bureau staff in "developing" the contract. We do not know what you mean to imply by the useage of the term "developing." However, as set forth - above, you may not yourself negotiate, but so long as your name did not appear anywhere in the contract.or funding application and your activities do not amount to negotiating or re.- negotiating the contract, your company may work with Bureau staff in "developing" the contract. Conclusion: Upon your termination of service with the Commonwealth, you became a former public employee subject to the restrictions imposed by under Section 3(e) of the Ethics Act. Your conduct within the first year following your termination of employment with the Commonwealth must conform to this Advice, and you should take note of both prohibited and allowable activities as discussed above. Additionally, as a former public employee, you must file a Statement of Financial Interests for each year in which you held the position 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. 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. CW /rdp cc: Barry H. Stern, Secretary Richard A. Himler, Personnel Director Sincerely, i 11l 'tandra S. Christianson General Counsel