HomeMy WebLinkAbout82-508 KerrMr. David E. Kerr
1503 -E Blue Mountain Parkway
Harrisburg, PA 17112
Dear Mr. Kerr:
Mailing Address'
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 28, 1982
ADVICE OF COUNSEL
82 -508
RE: Restrictions - Retirement from PLCB - Executive Director
This responds to your letter of October 16, 1981 in
which you, as an Executive Director of the Pennsylvania
Liquor Control Board, request advice from the State Ethics
Commission.
Issue: You ask what restrictions will apply following your
retirement from the LCB, particularly in the following
areas:
1. As a salesman for a beer distributor, distillery
winery or importer;
2. As a supervisory or management employee in one
of the above situations if no contact with or re-
presentation of the employer before the PLCB
was required;
3. As an officer, director, or stockholder of one
of the above, if such position did not require
contact or representation before the PLCB;
4. As an applicant for a retail liquor license
or beer distributor's license issued by the
PLCB;
5. As a manager for a retail liquor licensee.
Facts: You presently serve as Executive Director of the
Pennsylvania Liquor Control Board and anticipate early
retirement from your employment with the State. You expect
that you will supplement your retirement income through some
type of limited employment. Your industry and management
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. David E. Kerr
January 28, 1982
Page 2
expertise as an Executive Director may make you eligible for
certain employment opportunities, such as the five areas noted
above, You ask about potential restrictions that the Ethics
Act might impose on your activity in one or more of these
areas.
Discussion: The Ethics Act, 65 P.S. Section 401 et seq.
defines public employee as "Any individual employed by the
Commonwealth ... who is responsible for taking or recommending
official action of a non - ministerial nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing,.regulating or
auditing any person; or
(5) any other activity where the official action
an Ec.nomic impact of greater than a
de minimus nature on the interests of any
person.
As an Executive Director of the Pennsylvania Liquor
Control Board, you are a public employee for the purposes of
the Ethics Act. The governmental body with which you are
associated is the PLCB.
As a public employee, you will be subject to certain
restrictions on activity upon your retirement from the
position of Executive Director. Section 3(e) states:
"No former official or public
employee shall represent a
person, with or without compen-
sation, 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)
Thus, you will be prohibited from representing anyone,
including yourself, before the Liquor Control Board for one
year following the date of your retirement. "Representation"
has been defined in Commission Opinions as including lobbying
and negotiating on contracts before the PLCB. See Kilareski,
80 -054.
Mr. David E. Kerr
January 28, 1982
Page 3
The Ethics Act, however, does not bar your seeking
and /or accepting other employment. While you still serve as
a public employee you must nevertheless abide by the other
Section 3 restrictions. That is, you may not use your public
office or any confidential information received therefrom to
obtain financial gain other than compensation provided by
law for yourself, your immediate family, or any business
with which you are associated. Similarly, you may not
solicit or accept anything of value, including a promise of
future employment, based on an understanding that your vote,
official action, or judgment would be influenced thereby.
Applying these restrictions to your hypothetical
employment opportunities, the Ethics Act would not bar your
employment as a salesman for a beer distributor, distillery,
winery, or importer. As long as such employment /status did
not require representation before the PLCB, the Ethics Act
would not prohibit your employment as a supervisor, manager,
officer, director or stockholder for a beer distributor,
distillery, winery, or importer.
If an application for retail liquor or beer distri-
butor's license would require you to represent yourself and
your qualifications before the PLCB, you could not undertake
such activity for one year from the date of your retirement.
Finally, to the extent that you would not have to
represent yourself before the PLCB, you could be a manager
for a retail liquor licensee immediately upon retirement. In
any capacity, you may make general informational inquiries of
the PLCB and generally make use of your knowlege and expertise
so long as no elements of "representation" are involved.
Conclusion: As a public employee, you must follow the
restrictions, outlined above, prescribed by the Ethics Act
that will govern your conduct for one year following your
retirement. You will also be required to file a Financial
Interest Statement no later than May 1 of the year in which
you actually leave public office and by May 1 of the year
after you leave State employment.
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.
Mr. David E. Kerr
January 28, 1982
Page 4
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
Sincerely,
dra S. Astianson
General Cou sel