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HomeMy WebLinkAbout81-604 DonadeeMichael A. Donadee Chief Counsel Department of Community Affairs Harrisblzrg, PA 1712G RE: Former Employee, Contracting Dear Mr. Donadee: Mailin Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 13, 1981 ADVICE OF COUNSEL 81 -604 This responds to your communication of July 29, 1981 in which you requested advice from the State Ethics Commission. Issue: You requested advice as to whether it is proper for the Department of Community Affairs to contract with a former employee in the circumstances described below, Facts: You indicate that the Department is considering a professional services contract between the Department of Community Affairs (DCA) and a former employee. This contract would be for the completion of the Park Recovery Action Plan for the City of Erie. The former employee involved is Alan J. Kulczewski. Mr. Kulczewski was a Recreation and Parks Advisor III with the Department's Erie Regional Office until_ he resigned on June 26, 1981. He resigned to accept a position in Illinois. At the time he left the Department, Mr. Kulczewski was working on the Recovery Plan with are outside consultant, Robert Ruhe. The Department wishes to contract with Mr. Kulczewski to complete the Recovery Plan because such contract would be the most efficient and least expensive way to meet the Department's obligation to complete the Plan. Mr. Kulczewski was the only Departmental employee working with Mr. Ruhe on the Plan and it would be difficult and time - consuming to State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Michael A. Donadee August 13, 1981 Page 2 have another employee take over the Plan which is now near completion. According to the information which you have supplied this project is at present 60% completed. The proposed contract would be for 50 hours of work and cost approximately $650 at the hourly rate which Mr. Kulczewski would charge of $13 per hour. Discussion: Section 3(e) of the Ethics Act, 65 P.S. 403(e) regulates the conduct of former public employees in that it provides that No former... 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. In the case of Mr. Kulczewski it is necessary to review the question of which "governmental body" he was "associated with" during his tenure with the Department of Community Affairs. In addition, it is necessary to review the nature and scope of the term "representation" of "any person." Generally, the Commission has determined the concept the "governmental body" with which an individual has been associated with is that entity with which he has or may have had "influence." In the case of Mr. Kulczewski, it appears that his job description and his responsibilities were fairly limited to the 14 county region involved with the Erie Regional Office and the sub - region (including Warren, P•1cKean, Potter, Cameron, Elk, Clearfield, Jefferson, Clarion, Forest and Venango Counties). His main responsibilities revolved around advising local governments in these particular areas. There is an indication that any grants or assistance requests would be processed through his office to the Depart- ment of Community Affairs. However, this fact alone does not indicate that his governmental body should be considered as broad as the entire Department. In addition, we must consider the question of whether or not he would be "representing" any person before the Department if this contract were to be awarded to him by the Department. The Commission has determined in previous cases that "representation" which must be precluded for the one - year period includes the signing and submitting under his own signature of proposals, contracts or other items on behalf of another person or employer. It also has been determined that this prohibited "representation" includes allowing his name to be used on a bid proposal as an Michael A. Donadee August 13, 1981 Page 3 individual who would be involved in administering any contract. See Dalton, 80 -056 and Kilareski, 80 -054. Here, no such proposals were requested or presented. Rather, this person is merely completing this study at the Department's request to meet the Department's legal obligation. In the circumstances which you present, however, it does not appear that Mr. Kulczewski would be representing the interest of any new employer or any other "person" as that term is defined in the Ethics Act. Specifically, Mr. Kulczewski would be serving the Department on his own behalf at the Department's behest and not representing or attempting to influence the Department on behalf of any person. Given the fact that the scope of Mr. Kulczewski's governmental body with which he was associated while serving with DCA may not be as broad as the entire Department, and given the fact that he is not attempting to "represent any person" before that former governmental body, we conclude that this contract would be permissible. Conclusion: The Department of Community Affairs may contract with Mr. Kulczewski on the specific basis and for the limited purpose described above. This determination is strictly limited to the unique and unusual facts presented and does not represent a ruling of any precedential value. 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 may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sandra S. Christianson w General Counsel