HomeMy WebLinkAbout84-629 HatterRonald E. Hatter
832 Josephine Avenue
Indiana, PA 15701
State Ethics Commission
308 Finance Building
P. 0. Box 11470
Harrisburg, Pa. 17108 -1470
State Ethics Commission
November 30, 1984
ADVICE OF COUNSEL
84 -629
Re: Simultaneous Service, Safety and Labor Relations Coordinator,
Minority Business Enterprise
Dear Mr. Hatter:
This responds to your letter of October 27, 1984, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether, as a safety and labor relations coordinator for the
Pennsylvania Department of Transportation, hereinafter PennDot, you may also
serve as or undertake activity as an individual engaged in a minority business
enterprise as a sub - contractor.
Facts: Your letter indicates that you are currently employed with PennDot in
a capacity of safety and labor relations coordinator and that you serve in
this capacity within District 10 -0 located in Indiana, Pennsylvania. It should
be noted that in this capacity you have not been required to file financial
interest statements under the State Ethics Act. In this regard, therefore,
this advice will assume that the Office of Administration and PennDot have
concluded that you are not within the classification or category of "public
employee" as that term is defined in the State Ethics Act. See 65 P.S. 402,
definition of "public employee."
Nevertheless, you are concerned that your proposed activity of
establishing a minority business enterprise might give rise to a conflict of
interest. You are specifically concerned with whether your involvement in
such a business would place any restrictions upon you within the first year
after you would terminate your employment with PennDot. The specific business
that you have in mind would be to provide traffic control service as it
relates to various types of construction projects on the Commonwealth
highways. You intend to specialize in sub - contracting for this service.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Ronald E. Hatter
November 30, 1984
Page 2
Discussion: We are not sure from your request whether you intend to undertake
the above - referenced activity of establishing a minority business enterprise
while you continue to be employed with PennDot or if you wish to only engage
in this activity subsequent to your termination of employment with PennDot.
Thus, we will proceed to respond to this question on both assumptions. In the
first instance we will address the situation where you may be undertaking the
activity of establishing and maintaining a minority business enterprise while
remaining an employee of PennDot. Also, before reaching this question we will
discuss whether the restrictions and provisions of the Ethics Act are even
applicable to you in that you may not be considered a "public employee" as
that term is defined in the State Ethics Act.
On this concern, we have reviewed your job description for your position
as a Personnel Analyst II and do not disagree with the determination of
PennDot that you are not to be considered a "public employee" subject to
provisions of the financial reporting and disclosure sections of the Ethics
Act. As such, if you are not to be considered a "public employee" there need
be no further review of the questions you present, because only those persons
who are "public employees" or "former public employees" would be subject to
any restrictions under the Ethics Act. See Section 3(a) and Section 3(e) of
the Ethics Act, 65 P.S. 403(a) and 403(e), respectively. Thus, under this
analysis you would be free to undertake your minority business enterprise
venture before you would leave PennDot or to act vis -a -vis District, 10 -0 or
PennDot in general, within the year after your termination service with
PennDot.
Even if we were to assume that you are to be considered "public employee"
while employed with PennDot in your capacity as a Personnel Anaylst II we
would be compelled to conclude that your conduct, even if it must conform to
the provisions of the State Ethics Act would not necessarily, as outlined more
fully below, conflict with the requirements of the Ethics Act. If you were
subject to the Ethics Act, Section 3(a) would be applicable while you remain
an employee of PennDot. Section 3(a) states:
Section 3. Restricted activities.
(a) No public official or public employee shall use his
public office or any confidential information received
through his holding public office to obtain financial gain
other than compensation provided by law for himself, a
member of his immediate family, or a business with which
he is associated. 65 P.S. 403(a).
Ronald E. Hatter
November 30, 1984
Page 3
Of course, under this provision, you may not use your public position to
secure any financial gain for the minority business enterprise you might
establish. However, there does not appear to be a real possibility of any
financial gain or inherent conflict arising if you were to serve both as a
public official and /or public employee and as a minor businessman.
Basically, the Ethics Act does not state that it is inherently
incompatible for a public official and /or employee to serve as minority
business entrepreneur. The main prohibition under the Ethics Act and Opinions
of the Ethics Commission is that you may not serve the interests of two
persons, groups, or entities whose interests may be adverse. See Alfano,
80 -007. In situation outlined above, you would not he serving entities with
interests which are adverse to each other.
Likewise, if you were to considered a "public employee" while you served
as a Personnel Analyst II with PennDot we also provide the following
information with respect to your duties and responsibilities under such a
circumstance vis -a -vis your former employer within the first year after you
leave state service. Under this assumption, that you were a "public employee"
while serving with PennDot it would be clear that you may face some
restrictions as a "former public employee." For the sake of completeness of
our response we will also indicate to you those restrictions which you might
face in such a situation.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with Pennflot. 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 435 A.2d 94 6$1-)
From your job description and based upon the facts outlined above, your
jurisdiction, responsibility, influence and control appear to have been
limited the to Personnel Division, District 10 -0. Thus, the "governmental
body" with which you must be deemed to have been "associated" should you be
considered a "public employee" and should you terminate your employment with
Pennflot would be the Personnel Division, District 10 -0. Therefore, within the
first year after you would leave PennDot even if you are considered a "public
employee," Section 3(e) of the Ethics Act would apply and restrict your
activity of "representation" of persons or new employers only vis -a -vis the
Personnel Division, District 10 -0.
Ronald E. Hatter
November 30, 1984
Page 4
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Personnel Division, District 10 -0.
Likewise, there is no general restriction against your establishing a
business, seeking employment, and engaging in private work or supplying
services to clients or employers, in general, following your retirement or
departure from PennDot. You may not, however, "represent" any new employer or
client before the Personnel Division, District 10 -0 as described more fully
below for the first year after you leave PennDot.
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
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 Personnel
Division, District 10 -0 including, but not limited to, negotiations or
renegotiations on contracts with the Personnel Division, District 10 -0;
2. Attempts to influence Personnel Division, District 10 -0;
3. Participating in any matters before Personnel Division, District 10 -0
on any case, matter, or contract over which you had supervision, direct
involvement, or responsibility while employed by PennDot;
4. Lobbying, that is representing the interests of any person or
employer before the Personnel Division, District 10 -0 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 Personnel Division, District 10 -0, constitutes an
attempt to influence your former governmental body. See Kilareski, 80 -054.
Ronald E. Hatter
November 30, 1984
Page 5
Therefore, within the first year after you leave PennDot, 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 Personnel Division,
District 10 -0 or which will be reviewed by the Personnel Division, District
10 -0. 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 Personnel Division, District 10 -0, is not prohibited as
"representation." See Kotalik, 84 -007.
You may, even under the above restrictions and even if you were to become
a "former public employee, „ assist in the preparation of any documents
presented to the Personnel Division, District 10 -0 and assist in the
preparation associated with appearances to be made by a person, other than
yourself, before Personnel Division, District 10 -0, 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 Personnel
Division, District 10 -0 to secure information which is available to the
general public. See Cutt, 79 -023.
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
Personnel Division, District 10 -0 or personnel within PennDot generally. See
Dalton, 80 -056 and Beaser, 81 -538.
Conclusion: There is some doubt that you ought to be considered a "public
employee” or a "former public employee" should you resign your position with
PennDot. Accordingly, because of these determinations you would not face any
restrictions in your capacity as an employee of PennDot, should you undertake
your minority business enterprise while remaining with PennDot. Likewise,
should you terminate your employment with PennDot you would not becane a
"former public employee" and, thus, you would not be subject to any
restrictions under Section 3(e) of the Ethics Act.
Even in the event that the determination that you are not "public
employee" or would become "former public employee" upon your termination of
employment with PennDot would be in error, Section 3(a) of the Ethics Act
would not preclude you from undertaking this minority business venture even
while remaining an employee at PennDot as discussed above. Likewise, in the
event that you would face any restrictions under Section 3(e) of the Ethics
Act those restrictions would be effective only vis -a -vis the Personnel
Division of District 10 -0 of PennDot as outlined above, and would not preclude
your venture, in general.
Ronald E. Hatter
November 30, 1984
Page 6
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 /sfd
cc: Bruce Domen
Sincerely,
Sandra S. Chr. stianson
General Counsel