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HomeMy WebLinkAbout84-597 BruggemanMr. Charles F. Bruggeman 2947 Schoolhouse Road Middletown, PA 17057 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 14, 1984 ADVICE OF COUNSEL 84 -597 RE: Former Public Employee; Section 3(e), Liquor Control Board Dear Mr. Bruggeman: This responds to your letter of August 6, 1984, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Commonwealth, should such occur. Facts: You indicate that you are presently employed by the Pennsylvania Liquor Control Board, hereinafter the LCB, as Director as the Bureau of Logistics and you are classified as a Liquor Logistics Administrator. You indicate that while employed by the LCB, as indicated on your job description, you were responsible for the following activities: 1. planning, directing and evaluating all liquor distribution and acquisition functions of the LCB; 2. developing, implementing and maintaining a merchandise selection and delivery plan for liquor products to meet the demands of the Pennsylvania consumers while maximizing the State's revenues; 3. recommending to the Board items to be sold or removed from the State's liquor stores and reviewing and evaluating the preparation and issuance of all price and code list changes; 4. developing, implementing and evaluating systems, standards, policies, and procedures to insure that profit and service policies of the LCB are maintained; Mr. Charles F. Bruggeman August 14, 1984 Page 2 5. participating and obtaining and recommending to the Executive Director and the LCB acquisition of warehouse and transportation services needed to meet the LCB objectives; 6. preparing budget estimates and other fiscal statistical reports and monitoring budget expenditures of the Bureau of Logistics. In addition to the information which you provided by way of your job description, which is incorporated herein by reference, we have also received an organizational chart of the LCB which was submitted to and approved by the Executive Board on July 26, 1984. This chart indicates that you report directly to the Executive Director who in turn reports to the members of the LCB. You indicate that your future plans may involve accepting employment as a Vice - president with a private firm, General Commodities Warehousing and Distributing Company, hereinafter, GENCO. GENCO is a diversified physical distribution company with operations in both the Pittsburgh and Lebanon areas. Among other clients, GENCO's Lebanon operation provides distribution services under contract to the LCB. GENCO received its first contract with the LCB as a result of a public bid process in 1975. The current contract between GENCO and the LCB was negotiated and became effective in July, 1980, for a three year period, with the option to extend for two more two year periods after that. You did not assume your present position with the LCB until September, 1981. Further, you indicate that there were no renegotiations involved in the extention of this contract after 1983 nor were you involved in any recommendations regarding this contract. You indicate that in your present position you did not control the acquisition of warehouse services but you do recognize that your job description allows you to "participate in obtaining and recommending to the Executive Director and the Board the acquisition of warehouse and transportation services." You realize that you will face restrictions in your dealings on behalf of GENCO with the LCB but your fundamental question is whether you may, consistent with the Ethics Act, accept employment with GENCO. Discussion: As a Liquor Logistics Administrator - Director, Bureau of Logistics for the LCB, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Pa. Code 1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting and procurement, or other activities where the economic impact is greater than de minimus on the interests of another person. Mr. Charles F. Bruggeman August 14, 1984 Page 3 Consequently, if you were to terminate this employment you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (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. Initially, to answer your request we must identify the "governmental body �� with which you were associated while working with the LCB. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public employment extends, not to those entities where he may have had contact or acquired acquaintances and colleagues, but only to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From your job description and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the LCB. See Hockenberry, 84 -507. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with the LCB would be the LCB. Therefore, within the first year after you would leave the LCB, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the LCB. The Ethics Act would not affect your ability to appear before agencies, or entities other than with respect to the LCB. Likewise, there is no general restriction against your seeking employment or engaging in private consulting work or supplying services to clients or employers, in general, following your retirement or departure from the LCB. You may not, however, "represent" any new employer or client before the LCB as described more fully below for the first year after you would leave the LCB. The Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and August 1 4 , 1vb4 Bruggeman Page 4 submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been deemed to have been associated, that is the LCB, including, but not limited to, negotiations or renegotiations on contracts with the LCB; 2. Attempts to influence the LCB; 3. Participating in any matters before the LCB on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by the LCB; 4. Lobbying, that is representing the interests of any person or employer before the LCB in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the LCB, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you would leave the LCB, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the LCB or which will be reviewed by the LCB. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal ", even if submitted to or reviewed by the LCB, is not prohibited as "representation ". See Kotalik, 84 -007. You may, even under the above restrictions, assist in the preparation of any documents presented to the LCB and assist in the preparation associated with appearances to be made by a person other than yourself before the LCB so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the LCB to secure information which is available to the general public. See Cutt, 79 -023. Mr. Charles F. Bruggeman August 14, 1984 Page 5 Likewise, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. This would be true even if your administration of a contract involved dealing with personnel of the Logistics Bureau or personnel within the LCB generally. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As a Liquor Logistics Administrator- Director, Bureau of Logistics you are to be considered a "public employee" as defined in the Ethics Act. If you terminate your service with the LCB, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. If this occurs, your conduct should conform to the requirements of the Ethics Act as outlined above. Further, should you terminate your employment as outlined above, you are reminded that the Ethics Act also requires that as a public employee you must file a Statement of Financial Interests for each year in which you hold the position described above, 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 full 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 /na Sincerely, S.ndra S. General Couns tianson cc: Phillip J. Joseph, Director, Bureau of Personnel, LCB Daniel Pennick, Chairman, LCB