HomeMy WebLinkAbout81-619 HeslepThomas R. Heslep
219 Wood Street
Camp Hill, PA 17011
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
September 14, 1981
ADVICE OF COUNSEL
81 -619
RE: Section 3(e); Chief of Physical Plant and Construction,
Pennsylvania Department of Education
Dear Mr. Heslep:
This responds to your letter of August 13, 1981, in
which you requested an opinion from the Ethics Commission.
Issue: You requested advice as to the limits imposed by the
Ethics Act upon your contact with your former employer, the
Division of Physical Plant and Construction, Pennsylvania
Department of Education.
Facts: You informed us that you were the Chief of the
Pennsylvania Department of Education's (the Department)
Division of Physical Plant and Construction (Division). The
Division is responsible for monitoring compliance with the
provisions of the School Code relating to the construction,
maintenance and operation of school buildings. As Chief,
you managed the Division, evaluated and recommended changes
in laws and regulations related to school buildings, and
determined the reimbursability of school projects. On July
29, 1981 you left your position as Chief of the Division and
now desire to offer your professional services to various
branches of state and local government.
Discussion: The Ethics Act, 65 P.S. §401 et seq., defines
"public employee" as any person employed by the Commonwealth
who is responsible for taking or recommending official
action of a non - ministerial nature with regard to contrac-
ting or procurement; regulating any person or any other
activity where the official action has a greater than de
minimus impact on the interests of any person. Id §402.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Thomas R. Heslep
September 14, 1981
Page 2
You clearly were a public employee; you were employed by the
Commonwealth and performed non - ministerial duties relating
to public schools. As a former public employee you are
subject to restrictions imposed by the Act on your activities
after leaving public employment.
The restrictions of Section 3(e) of the Act are:
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. 65 P.S.
§403(e).
Before discussion of the restictions of Section 3(e)
the scope of the term "governmental body" must be deliniated.
The governmental body with which you were associated is the
Department, in general. Limitations upon your activities
apply to the Department for one year subsequent to July 29,
1981. Thus, you may immediately contract with any private
firm or governmental body except as indicated in further
discussion below.
Past decisions of the Commission hold that you cannot
make a personal appearance before the Department, Morris,
80 -039; Widoff, 79 -055; or attempt to influence the Depart-
ment, Cutt, 79 -023. Nor can you participate in any manner
in any case or matter over which you had supervision, direct
involvement, or responsibility while you were Chief of
Division, or lobby the Department, that is represent the
interests of any person before the governmental body to
influence that body in relation to legislation or regula-
tion. Russell, 80 -048; Seltzer, 80 -044. For example, you
could not accept private employment as a consultant on a
bond issue over which you had supervision, direct involve-
ment or responsibility as a public employee. You could not
represent the interests of any person in an effort to lobby
the Department to modify a regulation. In Kilareski, 80-
054 the Commission also decided that a former public employee
could not prepare, sign or file a bid proposal. Similarly,
you may not prepare, sign or file documents submitted to the
Department, although you may consult on these matters without
signing these if you did not have responsibility over same,
as set forth above.
Thomas R. Heslep
September 14, 1981
Page 3
The proscription against preparation, signature of or
filing of bid proposals does not prevent you from admini-
stering a contract awarded by the Department to another
State agency or school district. Kilareski, 80 -054. You
may appear on behalf of clients before any state agency or
any governmental body other than the Department. Members of
your firm may represent clients before the Division or
Department. You may make inquiries of the Department similar
to general informational inquiries made by members of the
general public and utilize the knowledge and experience
gained as a public employee, except as noted above. Morris,
80 -039.
Finally, we do not find that the prohibitions contained
in Section 3(g) of the Ethics Act, 65 P.S. 403(g) are
applicable to you. You are not to be considered a former
"executive level employee" because you were not able to
affect a state agency's decision in relation to a private
corporation or "business" as that term is defined in the
Ethics Act. In addition, Section 3(g) relates to "a business"
or corporation which relocated or expanded in Pennsylvania
as a result of your efforts. School districts are not
"businesses" as defined in the Act and therefore Section
3(g) may not be invoked to prohibit your contracting with
them.
Conclusion: You are a former public employee of the Division
of Physical Plant Construction, Pennsylvania Department of
Education. As a former public employee you may contract
with and provide services to any state agency, school district
or other entity, subject to the restrictions noted below.
You may not, for the year following your termination of
state service:
(1) make a personal appearance before the Department,
or
(2) attempt to influence the Department, or
(3) participate in any manner in any case or matter
over which you had supervision, direct involvement
or responsibility; or
(4) lobby the Department; or
(5) prepare, sign or file bid proposals submitted to
the Department.
These prohibitions apply for one year after the date of
your retirement, July 29, 1981.
Thomas R. Heslep
September 14, 1981
Page 4
Within these limits you may contract to provide services
with any governmental body other than the Department. You
may also:
(1) administer a project awarded by the Department;
and
(2) appear before any other state agency; and
(3) make inquiries of the Department similar to those
made by members of the public; and
(4) utilize knowledge and experience gained as a
public employee.
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.
SW /rdp
Sincerely,
Sandra S. C'ristianson
General Co nsel