HomeMy WebLinkAbout84-539 DiDonatoMr. E. J. DiDonato
110 Rolling Meadows Drive
RD #8
Greensburg, PA 15601
Dear Mr. DiDonato:
Mailin Address.
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
March 20, 1984
ADVICE OF COUNSEL
RE: Westmoreland Manor, Ronette Corporation, Section 3(e)
84 -539
This responds to your letter of March 2, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions on your
activity as a former public employee of the Westmoreland Manor, in
Westmoreland County.
Facts: You indicate that you are presently serving in the capacity of
Administrator at Westmoreland Manor, a 540 bed nursing home, owned and
operated by the County of Westmoreland, hereinafter the County, located in
Greensburg, Pennsylvania. You have enclosed a job description of your duties
and responsibilities while serving in this post and that job description is
incorporated here by reference. You have served in this position under the
authority of the Board of County Commissioners since April 1, 1976. However,
you are contemplating a change of employment. In fact, in November, 1983, you
submitted your resignation to the Westmoreland County Commissioners in order
to accept a position with Ronette Corporation, hereinafter Ronette or the
Corporation.
Because a question of Ethics was raised at the time of your resignation,
you have decided to, upon the request of the County Commissioners, to remain
in your post as Administrator until the matter could be clarified and a
response provided.
You indicate that the position you are contemplating accepting with
Ronette carries the title of Director of Operations. Ronette is a medical
supply service firm and the responsibilities of the assignment as Director of
Operations for Ronette would be related to the day -to -day operational matters
of Ronette. An example of the duties you would be required to undertake on
behalf of Ronette include the following:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. E. J. Difonato
March 20, 1984
Page 2
1. Office management -- establish and control the work flow of seven
office staff members in such areas as correspondence, billing
functions, accounts receivable, and accounts payable.
2. Purchasing -- coordinate the purchasing of materials and supplies,
including warehousing and inventory functions.
3. data processing -- system creation and control of automated
processing methods utilized within the firm.
4. Research -- gather and coordinate information required to plan
expansion potential of new services to be rendered by the firm.
If you accept the position and begin employment with Ronette, you
indicate you will not represent Ronette as a marketing agent with any of its
clients. You indicate that you will neither negotiate nor re- negotiate any
contracts on behalf of Ronette.
Discussion: While you are employed as Administrator at Westmoreland Manor you
are to be considered a "public employee" as that term is defined in the State
Ethics Act. See Section 2 of the State Ethics Act, 65 P.S. 402. We base this
conclusion on the review of your job description and the responsibilities set
forth in that job description.
Therefore, when you terminate your employment with the County, you will
become a "former public employee" and as such, 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, for the first calendar year following your
termination of employment with the County, you would be required to refrain
from representation as the Commission has further defined that term vis -a -vis
the governmental body or bodies with which you may have been associated while
employed by the County. We must, however, review your request by asking the
following questions:
1. What is the scope of the term and activity known as
"representation ?" and,
2. To which governmental body or bodies do the restrictions and
prohibitions against "representation" extend in your case?
Mr. E. J. DiDonato
March 20, 1984
Page 3
In response to the first question, it is clear that the Commission has
determined through its regulations, that the prohibited activity known as
"representation" in Section 3(e) includes the following:
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 Pa. Code 1.1.
In addition, the opinions of the Commission further provide guidance as
to the scope of this prohibited activity and those opinions indicate that the
following activities are prohibited under Section 3(e) of the Ethics Act:
1. personal appearances before the governmental body or bodies with
which you may have been associated, including but not limited to
negotiation or re- negotiation of contracts;
2. attempts to influence the governmental body or bodies with which you
have been associated;
3. participation in any manner before these bodies in a case or matter
over which you had supervision, direct involvement, or
responsibility while employed by the County; and
4. lobbying, that is representing the interests of any person before
the governmental body or bodies with which you had been associated
in relation to legislation, regulations, etc. See Russell, 80 -048
and Seltzer, 80 -044.
Thus, the activities as outlined above, would be specifically prohibited
pursuant to Section 3(e) of the Ethics Act with respect to the governmental
body or bodies with which you had been deemed to have been associated while
serving with the County. 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 body or bodies
with which you are deemed to have been associated. Thus, these activities are
likewise prohibited. See Kilareski, 80 -054. Also, where you know or should
know that a submission or proposal that you might make to an entity other than
the body or bodies with which you are deemed to have been associated would be
reviewed by that governmental body or bodies with which you have been
associated, your name should not appear on such a proposal. Anderson,
83 -014.
Mr. E. J. Di Donato
March 20, 19R4
Page 4
While the above - referenced restrictions apply to you pursuant to Section
3(e) of the Ethics Act vis -a -vis that governmental body or those bodies with
which you have been associated, you may, nevertheless work for an employer
such as Ronette and may, despite the above - referenced restrictions, engage in
the following activities:
A. You may administer rather than negotiate or re- negotiate any
contract that exists or is to be awarded to your future employer so
long as the contract or subcontract 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 bodies with which you have been associated so long as there
is no attempt to influence those bodies.
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.
t). You may appear and represent any person on behalf of any client or
new employer before any entity or governmental body except that
governmental body or bodies with which you have been deemed to have
been associated.
Moving to the second question outlined above, we must now determine which
governmental body or bodies you may have been associated with while employed
by the County. In your position as Administrator of Westmoreland Manor, we
conclude that your influence, responsibility, and authority are such that you
are to be deemed to have been associated with Westmoreland Manor, the County
Commissioners' offices, in general, and the Westmoreland County Institution
District Board (WCIDB), to whom you reported. Thus, we must conclude that the
governmental bodies with which you have been associated are the Westmoreland
Manor, the offices of the County Commissioners and the WCIDB. Accordingly,
you would face restrictions under Section 3(e) and you should not "represent"
any person with or without compensation for the one year period following your
termination of employment with the County before any of these entities.
We also note and assume throughout this Advice that, in the process of
leaving Westmoreland Manor and seeking or securing employment with Ronette,
there has been no violation of Section 3(b) of the Ethics Act which provides
as follows:
(h) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
Mr. E. J. DiDonato
March 20, 1984
Page 5
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
We should also note that the Ethics Act provides that persons who believe
that the Ethics Act has been violated may present complaints to the Ethics
Commission under Section 8(a) of the Ethics Act, 65 P.S. 408(a). If such
complaints were to be presented, we would, of course, he compelled to review
the facts and circumstances of same, the facts and circumstances presented in
this Advice, the application of the law, and the protections provided by
Section 7(9)(ii) of the Ethics Act.
Conclusion: Upon your termination of service with the County you will become
a "former public employee" subject to the restrictions of the Ethics Act and
your conduct as such must conform to the requirements of the Ethics Act as
described above. Specifically, while you may be employed by Ronette or any
other new employer, you may not appear or represent any person, with or
without compensation, for the one -year period following your termination of
employment with the County before Westmoreland Manor, the offices of the
County Commissioners, and the Westmoreland County Institution District Board
and the scope of the concept of "representation" is outlined above.
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.
SSC /rdp
cc: Irving L. Bloom, Esquire
Andrew J. Gleason, Esquire
Sincerely,
andra S. C istianson
General Counsel