Loading...
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