Loading...
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