HomeMy WebLinkAbout82-506 AlexanderMailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 26, 1982
ADVICE OF COUNSEL
Robert E. Alexander
Assistant Director
Systems /Programming Division
Fiscal & Systems Management Center
Department of Transportation
B -155 Transportation & Safety Building
Harrisburg, PA 17120
RE: Restrictions, Representation
82 -506
Dear Mr. Alexander:
This responds to your communications of January 21,
1982 and January 22, 1982.
Issue: In those communications you asked advice of the
State Ethics Commission relative to any restrictions imposed
by that Act upon you as a former public employee.
Facts: You indicate that you currently serve as an employee
in the Department of Transportation. Specifically, you are
currently classified as an EDP Manager II within the Fiscal
and Systems Management Center of the Department of Transpor-
tation. You indicate that while you do not establish policy
for the Department you do make recommendations to the
Associate Deputy Secretary for Fiscal and Systems Management
relative to EDP procurement. You assist the Associate
Deputy Secretary in developing and maintaining data proces-
sing systems which assist in the operation and management of
the Department of Transportation. You review requests for
data processing support and prepare planning documents. In
this process you report to the Associate Deputy Secretary
within the Fiscal and Systems Management Center who reports
to the Deputy Secretary for Administration within the Depart-
ment of Transportation.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
xoi er C t . t-11CXand
January 26, 1982
Page 2
You are anticipating terminating your employment with
the Commonwealth and expect to be employed with IBM. In
this new employment you suspect there would be regular
contact with IBM customers relative to supporting their
existing and future data processing needs.
Discussion: In your position as an EDP Manager II and
because of your role in making recommendations relative to
contracting or procurement, you do fall within the purview
of the definition of "public employee" as that term is set
forth in the Ethics Act. See 65 P.S. 402. As a consequence
the State Ethics Act governs your conduct as a "former
public employee." In Section 3(c) of the Ethics Act it is
stated 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. 65 P.S. 403(e).
Before discussing what you are permitted to do as a
former public employee it is necessary to determine the extent
of the "governmental body" with which you may have been
associated while employed with the Commonwealth. In a
previous opinion the Ethics Commission considered the scope
of the term "governmental body" as applied to a former
director of inter - governmental relations on the staff of the
Senate Minority Leader. See Ewing, 79 -010. There the
Commission held that the scope of a person's "governmental
body" which should be that body which th "former
public employee" was capable of asserting influence or the
body to which he made recommendations. In your case it is
clear that the term "governmental body" extends to the
Fiscal and Systems Management Center within the Department
of Transportation. Accordingly, you may not "represent any
person" before the Fiscal and Systems Management Center or
its personnel for a period of one year after you leave
employment with the Commonwealth.
Next, we must explore the dimensions of the prohibi-
tions contained in the term "representation." The term
"representation" has been interpreted by Opinions of the
State Ethics Commission. This term has been held to
preclude for the one year period set forth in relation to
the governmental body with which you were associated the
following activities:
Robert E. Alexander
January 26, 1982
Page 3
1. Personally appearing before the Fiscal and Systems
Management Center (hereinafter the Center) with
which you were associated, including but not
limited to negotiations on contracts with the
Center;
2. Attempting to influence the Center or its personnel;
3. Participating within this one -year period in any
manner over a specific case, matter, or contract
over which you had supervision, direct involve-
ment, responsibility while employed by the Common-
wealth. This prohibition relates to the Center
only and does not preclude your participation on
matters over which you had specific responsibility
so long as that participation does not include
representation as ennunciated herein before the
Center.
4. Lobbying, that is representing the interests of any
person before the Center for the one year period
as to legislation, regulations, etc. Morris, 80-
039 and Russell, 80 -048;
5. Signing and submitting under your own name corre-
spondence, proposals, contracts, or other items to
the Center.
6. Including your name on a bid proposal submitted to
the Center as the individual who would be involved
in administering any contract or providing technical
service on a contract which is subject of the
proposal. Dalton, 80 -056 and Kilareski, 80 -054.
While these restrictions are imposed upon you by the
Ethics Act for the one year period following your termina-
tion of service with the Commonwealth in relation to the
Center, I note that you may engage in the following acti-
vities even within this one year period:
a. You may administer, rather than negotiate or re-
negotiate, any contract that exists or is to be
awarded to your future employer so long as that
contract is awarded without your name being
included as noted above in items 5 and 6.
Robert E. Alexander
January 26, 1982
Page 4
b. You may make general information inquiries of the
Center so long as no attempt is made to influence
the Center as prohibited above.
c. You may utilize the knowledge and expertise gained
during your tenure as a public employee in rela-
tion to clients or other employers except as
outlined above.
d. You may appear and represent any person on behalf
of any client or any new employer before any
governmental body other than the Center.
Conclusion: As a former public employee your conduct should
be guided by this advice. Prohibition and activities
allowable are noted above and these should be met.
In addition, as former public employee you are required
to file a Financial Interest Statement for each year that
you hold office and the year following your termination of
service. Thus, a Statement of Financial Interest should be
filed no later than May 1, 1982, which represents the filing
required for this final year in which you hold office and a
statement must be filed no later than May 1, 1983 for the
year following your termination of service with the Common-
wealth (1982).
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.
cc: Thomas D. Larson, Sec.
PennDot
Si cerely,
await
Sandra S. % Christianson
General Counsel