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Home My WebLink About82-527 KutzMailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 March 9, 1982 ADVICE OF COUNSEL Mr. Scott A. Kutz Special Assistant for Systems Development Fiscal and Systems Management Center Department of Transportation 1216 Transportation and Safety Building Harrisburg, Pennsylvania 17120 RE: Restrictions - Representation - Former Employee Dear Mr. Kutz: This responds to your letter of February 9, 1982 in which you requested an advisory opinion from the State Ethics Commission. Issue: What, if any, restrictions does the Ethics Act impose on you, upon retirement from government service, regarding subsequent employment by a private corporation? State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 82 -527 Facts: You currently serve as Special Assistant for Systems Development in the Fiscal and Systems Management Center of the Department of Transportation. Your present class title is that of Administrative Officer 4. You explain that your primary responsibilities relate to the deveopment of a data processing system, the Project Management System (PMS). You also serve as the manager on the Fiscal Management Informa- tion Systems Planning Project. Your immediate supervisor is the Director of the Systems /Programming Division in the Fiscal and Systems Managment Center. Among your duties as Special Assistant, you administer the PMS and prepare special budget- related, management reports. You monitor the financial, programmatic, scheduling, budgetary and current status information about projects in order to estimate project expenditure schedules and augmenta- tion receipts. You direct the preparation of special manage- ment reports and absorb various other systems and fiscal assignments as necessary. Between August, 1981 and February 1982, you served as the Department's Manager on the Planning Project. Mr. Scott A. Kutz March 9, 1982 Page 2 You anticipate terminating your employment with the Commonwealth and expect to be employed with the Interna- tional Business Machines Corporation (IBM). IBM currently conducts business with the ? and Systems Management Center. Although you are not sure of the exact nature of your employment with IBM, you have interviewed for a Systems Engineer position. The position involves regular contact with IBM customers regarding present and future data processing needs. Discussion: n your position as Special Assistant for Systems Development, you are a public employee and have been subject to the provisions set forth in the Ethics Act, 65 PS. 402. You are employed by the Commonwealth and are responsible for recommending official action, vis -a -vis the budgetary management reports that you prepare, with regard to monitoring grants and subsidies. You have the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions, and your recommendations are an inherent and recurring part of your position. See 51 Pa. Code 1.1. Upon your retirement from Commonwealth service, you must observe the restrictions established by the Ethics Act. In particular, you cannot represent a person, with or without compensation, on any matter before the governmental body with which you have been associated for one year after you leave that body. 65 P.S. 403(e). In previous opinions, the Commission has held that the scope of an employee's governmental body is that body with which the former public employee was capable of asserting influence or the body to which he made recommendations. See Ewing 79 -010; Alexander 82 -506. In your case, the govern- mental body with which you were associated is the Fiscal and Systems Management Center (hereinafter, the Center) of the Department of Transportation. Thus, you may not represent a person before the Center or before its peronnel for a period of one year after you leave employment with the Commonwealth. The Commission has interpreted the term "representation" to preclude for the one year period, relative to the govern- mental body with which you were associated, the following activities: 1. Personnally appearing before the Fiscal and Systems Management Center, including but not limited to contract negotiations; 2. Attempting to influence the Center or its personnel; Mr. Scott A. Kutz March 9, 1982 Page 3 3. Participating within this one -year period in any manner over a specific case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by the Common- wealth. This prohibition relates to the Center only; it does not preclude your participation on matters over which you had specific responsibility so long as that participation does not include representation as enunciated 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; 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 the subject of the proposal. Dalton, 80 -056; Kilareski, 80 -034. While these restrictions apply to you for one year following your termination of service with the Commonwealth relative to the Center, you may nevertheless engage in the following activities even within the one year period: 1. Administer, rather than negotiate or renegotiate, any contract that exists or is to be awarded to your future employer as long as the contract is awarded without your name being included as noted above in Items 5 and 6. 2. Make general informational inquiries of the Center as long as no attempt is made to influence the Center as prohibited above. 3. Utilize the knowlege and expertise gained during your tenure as a public employee relating to clients or other employers except as outlined above. 4. Appear and represent any person on behalf of any client or new employer before any governmental body other than the Center. Mr. Scott A. Kutz March 9, 1982 Page 4 Conclusion: Upon your temmination of service with the Commonwealth, and specifically with the Fiscal and Systems Management Center of the Department of Transportation, you will become a former public employee subject to the restrictions set by the Ethics Act. Your conduct should be guided by this advice; you should take note of both the prohibited and the allowable activities noted above. Additionally, as a former public employee, you must file a Financial Interest Statement for each year in which you held office and for 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 the final year in which you hold office, and no later than May 1, 1983 for the year following your termination of service, should that termination occur during calendar year 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. BF /rcp cc: Thomas D. Larson, Secretary Sincerely, 52 4 ndra Christianson General rjounsel