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HomeMy WebLinkAbout84-634 PollockKaren D. Pollock P.O. Box 483 Carlisle, PA 17013 Dear Ms. Pollock: December 13, 1984 ADVICE OF COUNSEL 84 -634 RE: Former Public Employee; Section 3(e), Council on the Arts This responds to your letter of December 10, 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 Pennsylvania Council on the Arts. Facts: You indicate that until May 30, 1984 you served as Director of local arts services for the Pennsylvania Council on the Arts, hereinafter the Council. In this capacity you are responsible for the following activities: 1. Monitoring grant programs to non - profit arts organizations which were awarded by the open panel (Peer review) process; 2. Administering a "Council- initiated" service programs called the Pennsylvania Arts Information Systems Project, hereinafter the Information Project; 3. Planning and developing guidelines and materials for new programs as they were introduced and designing and executing services to the field programs, that is, art management seminars, festival technical assistance programs ,etc.; 4. Conducting workshops and conferences on community arts topics; 5. Advising community arts panels and the Council on the needs of arts and organizations in the community arts field; Ms. Karen D. Pollock December 13, 1984 Page 2 6. Acting as liaison between community arts field personnel and the Council, representing the Council at meetings, public gatherings, etc. and assisting local government officials in arts program design and assessment. Following your termination of employment with the Council you have asked the following series of questions with respect to your duties and responsibilities under the Ethics Act: 1. Would Act 170 preclude your being hired as a state consultant to continue administering the Information Project? 2. Would Act 170 preclude your being hired as a private consultant by an arts agency to act in the capacity as paymaster or conduit for state grant funds awarded specifically for the Information Project? 3. Would Act 170 preclude your working for an agency which is in reciept of Council funds? 4. What restrictions, if any, are placed upon you by the Ethics Act with respect to acting as a consultant to former or current grant applicants or recipients of Council funds or grants? 5. Does the Ethics Act preclude the Council from funding or considering technical assistance request from agencies who may wish to retain you as a consultant where the method of payment may include the use of some Council funds? 6. What restrictions, if any, would be placed upon your ability to be hired as a consultant or director to a newly incorporated consortium composed of Information Project participants insofar as you had been the administrator of the Information Project as outlined above. With respect to your questions, after consultation with you on December 13, 1984 you indicated that you would currently seek answers to questions 2 -6 listed above. At the present time you wish to withdraw question Number 1 from our consideration and, if necessary, you will resubmit this question at a later date. Our discussion below, therefore, will primarily respond to your questions Numbers 2 -6 above. Discussion: As a Director of Local Arts Services for the Council, you were 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 Ms. Karen D. Pollock December 13, 1984 Page 3 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, administration of grants, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of this employment or service , you became 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 Council . 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 or service 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 the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Council. Thus, the "governmental body" with which you must be deemed to have been "associated" would be the Council. Therefore, within the first year after you would leave the Council, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Council. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Council. Likewise, there is no general restriction against your seeking employment and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure from state employment. You may not, however, "represent" any new employer or client before the Council as described more fully below for the first year after you leave the Council. Ms. Karen D. Pollock December 13, 1984 Page 4 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 Council, including, but not limited to, negotiations or renegotiations on contracts with the Council; 2. Attempts to influence the Council; 3. Participating in,any matters before the Council on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by or serving Council; 4. Lobbying, that is representing the interests of any person or employer before the Council 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 Council, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Council, 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 Council or which will be reviewed by the Council. 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 Council, is not prohibited as "representation." See Kotalik, 84 -007. Ms. Karen D. Pollock December 13, 1984 Page 5 You may, even under the above restrictions, assist in the preparation of any documents presented to and assist in the preparation associated with appearances to be made by a person, other than yourself, before the Council 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 Council 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 Community Arts Program or personnel within the Council generally. See Dalton, 80 -056 and Beaser, 81 -538. Thus, having provided this general response, the answers to your questions specifically enumerated above would be as follows: A. Question Number 2 as you presented it: Act 170 would not preclude you from being hired as a private consultant by an arts agency so long as that hiring is done in compliance with the restrictions against your "representing" this potential employer before the Council as outlined above, with specific reference to your name not appearing on the proposal or your being listed as an employee who would be hired to or would provide services under the proposal, if accepted by the Council. B. Question Number 3 as you presented it: The Ehtics Act would not preclude your working for an agency which may receive Council funds so long as the restrictions outlined above with respect to your "representation" are met. C. Question Number 4 as you presented it: You are, therefore, not restricted from acting as a consultant to former or current grant applicants recipients of Council funds so long as there is no restricted representation as outlined above. In this respect we also indicate that for purposes of this response we are assuming that there has been no implication Section 3(b) of the Ethics Act. Section 3(b) of the Ehtics Act requires that a public employee may not solicit or accept anything of value, including the promise of future employment, on the asssumption or with the understanding that his or her future conduct would be influenced thereby. Ms. Karen D. Pollock December 13, 1984 Page 6 Section 3(b) of the Ethics Act, consequently, would require that while you served as a public employee you could not allow your official judgment, with respect to reviewing grants or programs and making recommendations thereon, for example, to be influenced by the potential future employment with a grant applicant or recipient. We mention this provision of the Ethics Act not to indicate that any such conduct has occurred, but in an effort to provide a full response to your inquiry. D. Question Number 5 as you presented it: The Ethics Act is not generally preclude you from being retained as a consultant by agencies using Council funds nor does it generally preclude the Council from considering or accepting funding request for technical assistance from agencies which may wish to retain you. However, the cautions outlined above with respect to the appearance of your name as the person who will provide services under and such funding request must be observed. . E. Question Number 6 as you presented it: The fact that you had been an administrator of the Information Project does not constitute a conflict if a newly incorporated consortium composed of Information Project participants were to hire you as a consultant or director. This response, of course,,again assumes that there has been no violation or implication of Section 3(b) of the Ethics Act and that your conduct with respect to this newly incorporated consortium would comply with the restrictions imposed upon you by Section 3(e) of the Ethics Act as outlined above, with respect to "representation" of this consortium. Conclusion: As a Director of local arts services for the Council you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Council, you would become a "former public employee subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Further, 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. Ms. Karen D. Pollock December 13, 1984 Page 7 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 Sincerely, Sandra S. Chri ianson General Counsel