HomeMy WebLinkAbout84-541 QuakenbushHelen M. Quackenbush
One Ten South Street
Harrisburg, PA 17101
Mafing Address:
STATE ETHICS COMMISSION
HARRISBURG, PA- 4-71-68'--
TELEPHONE: (717) 783 -1610
March 20, 1984
ADVICE OF COUNSEL
84 -541
RE: Section 3(e); Representation; Bureau of Recreation and Conservation;
Consulting Landscape Architect -
Dear Ms. Quackenbush:
This responds to your letter of December 1, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You would like to know what restrictions are placed upon you as a
former public employee by the Ethics Act.
Facts: On June 29, 1983, you were furloughed from the Department of Community
Affairs (DCA) where you had served as Chief of the Division of Recreation
Services (DRS) in the Bureau of Recreation and Conservation (BRC). You
subsequently filed for retirement from the Commonwealth.
As a Division Chief, you had policy responsibility for and participated
in discussions concerning allocation of state and federal funds for grants to
local governments and recreation authorities for planning, acquisition and
development of local parks and recreation projects. You were also involved
with allocations of state funds from the Housing and Development Bureau for
several small community improvement programs.
Some of your other responsibilities include assisting in developing
objectives, standards, and policies for the administration of state -wide
recreation, parks, and conservation programs. Additionally, you participated
on two advisory committees that provide guidance and direction to the
recreation planning program. These groups include the Citizen Recreation
Advisory Council (CRAC) and the Statewide Recreation Planning Advisory
Committee (SRPAC).
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 1111 0
Helen M. Quackenbush
March 20, 1984
Page 2
CRAC is composed of a broad -based group of organizations and individuals
concerned about issues impacting on the provision of leisure services and
recreation throughout the Commonwealth. Your position with this group was
purely as a staff resource. SRPAC, on the other hand, is involved in the
ongoing planning process, and includes citizen representatives in addition to
representatives from all agencies directly or indirectly involved in the
provision of recreation activities in the Commonwealth. Although you were a
staff resource person for CRAC, you indicate you served as a staff participant
on SRPAC and, thus, it is assumed you had some type of policy- making input to
SRPAC.
You recently received an invitation from the Deputy Secretary for
Resources Management in the Department of Environmental Resources, DER, to
serve on CRAC as a member from the recreation professionals category
representing private consultants in the field of recreation. You have a
sincere interest in serving on this group, and you have requested a ruling as
to whether you may do so.
Additionally, since July 6, 1983, you have been working as a consultant
to a private firm of architects, engineers and landscape architects. Among
projects for which the firm's services are generally contracted are local
government parks, recreation facilities, and housing and community
development, many of which involve funding from DCA programs with which you
formerly had involvement. In this regard, you would like to know what
restrictions may be placed upon you by the Ethics Act.
You have, therefore, asked the following specific questions.
1. What are the limitations imposed on you by the Ethics Act with
regard to your activities and for what length of time?
2. What rights do you have with regard to soliciting work from
other Commonwealth agencies for yourself as a private
contractor or for your firm as a consultant?
3. Are there any limitations on your participation on CRAC?
4. Are there any limitations on your participation on other
Commonwealth advisory committees, commissions, or boards? and
5. Does your post participation on CRAC and SRPAC impact your
activities as a consulting landscape architect as it relates to
question No. 2 above?
Discussion: As Chief of the Bureau of Recreation Services in the Department
of Community Affairs, Division of Recreation Services, you were a "public
employee" as that term is defined in the State Ethics Act. See 65 P.S. §402.
Therefore, upon termination of your employment with the Commonwealth, you
became a "former public employee" and your conduct must, therefore, conform to
the requirements of Section 3(e) of the Ethics Act, which provides:
Helen M. Quackenbush
March 20, 1984
Page 3
(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).
As a former public employee, you must, for the calendar year following
your termination of employment (June 29, 1983 to June 29, 1984) refrain from
"representation" before the governmental body or bodies with which you•were
associated while employed by the Commonwealth. Thus, we must analyze your
situation in light of what the Commission had defined as "representation" and
determine which entities, in fact, constituted the governmental body or bodies
with which you were associated.
Regulations of the Ethics Commission provide that the term
"representation" includes the following activities:
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.
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 or bodies with
which you are deemed to have been associated, including but not
limited to negotiations 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 such governmental body or bodies
on any matter over whih you had supervision, direct involvement, or
responsibility while employed by the Commonwealth;
4. lobbying, that is representing the interests 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.
Helen M. Quackenbush
March 20, 1984
Page 4
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 the governmental body or bodies with which
you are deemed to have been associated. Therefore, such adtivity 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
to be reviewed by that governmental body or those bodies with which you may be
deemed to have been associated has the potential for influencing the decisions
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.
While the above- referenced 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 exists 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.
We must next decide which governmental body or bodies you were associated
with while working for DCA, because it is vis -a -vis these bodies that the
above restrictions apply. From the job description and organization chart'
provided us, we conclude that the governmental bodies with which you were
associated include the Bureau of Recreation and Conservation (BRC), DRS, and
the Statewide Recreational Planning Advisory Committee (SRPAC). We include
SRPAC because both your request and your job description indicated that you
Helen M. Quackenbush
March 20, 1984
Page 5
seved as a DCA staff participant on that committee. See Geesey, 80 -057. On
the other hand, we do not include the Citizens Recreation Advisory Council
(CRAC) as a governmental body with which you were associated because your job
description and request indicate that you served only as a resource person and
did not directly act as a member of CRAC in setting policy-or making
decisions. Accordingly, the restrictions outlined above and the prohibited
activities listed as Numbers 1 - 4 above must be observed with regard to the
BRC, ORS, and SRPAC. With respect to any other entities within the Department
of Community Affairs or otherwise, you may undertake activities with out
regard to the restrictions.
Finally, we shall attempt to answer the questions outlined in your
request:
1. You ask what limitations are imposed upon you by the Ethics Act, and
for what length of time. As discussed above, you may engage in any
of the permissible activities lettered a - d above, but you may not
engage in any of the prohibited activities Nos. 1 - 4 above for the
one -year period following termination of your public employment,
specifically from June 29, 1983 to June 29, 1984. These
restrictions apply to the governmental bodies with which you were
associated, that is, BRC, including DRS, and SRPAC.
2. You ask what rights you have with regard to soliciting work from
other Commonwealth agencies for yourself as a private contractor or
for your firm as a consultant. So long as you refrain from any of
the prohibited activities discussed above with respect to BRC, DRS,
and SRPAC, you may solicit work from other entities, either local
government or Commonwealth agencies.
3. You ask whether there are any limitations on your participation on
CRAC. As discussed above, CRAC was not a governmental body with
which you were associated, therefore, there are no limitations upon
your participation on CRAC so long as you do not use any information
acquired from CRAC, or your position as a CRAC member, to your own
benefit as a private contactor or to the benefit of a client or a
firm which you might serve as a consultant.
4. You ask whether there are any limitations on your participation on
other Commonwealth advisory committees, commissions or boards.
Except for SRPAC as discuessed above, you are free to serve on any
Commonwealth committees.
Helen M. Quackenbush
March 20, 1984
Page 6
5. Finally, you ask whether your past participation on CRAC on SRPAC
impacts your activities as a consulting landscape architect as it
relates to question two above. Again, so long as your refrain from
any of the prohibited activities discussed above -with regard to BRC,
DRS, and SRPAC, you may, as a consulting landscape architect,
solicit work from other Commonwealth agencies so long as you do not
use any confidential information gained as a result of your having
worked for the Commonwealth. You should note that, as in the answer
to your question No. 3, you may not use any information you receive
as a current member (if appointed) of CRAC to benefit either
yourself or any firm or client for which you perform services.
Conclusion: Upon your termination of sevice with the Commonwealth, you became
a "former public employee" subject to the restrictions imposed by Section 3(e)
of the Ethics Act. Your conduct vis -a -vis BRC, DRS, and SRPAC must,
therefore, conform to the requirements of the Act as discussed in this Advice,
and you should take note of both the prohibited and permissible activities as
described herein.
Also, as a former public employee, you must file a Statement of Financial
Interests 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
Statement of Financial Interests 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.
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 2.1.2.
Sincerely,
CW /rdp
cc: Frederick Brooks, Jr., Personnel Officer
Honorable Shi7ley M, Dennis, Secretary
Sandra S. C ristianson
General Counsel