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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