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HomeMy WebLinkAbout82-569 EckDear Mr. Eck: Frederick N. Eck, Public Accountant 9th Street, Foster Building Honesdale, PA 18431 RE: Department of Aging, Contracting Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 9, 1982 ADVICE OF COUNSEL 82 -569 This responds to your letter of June 25, 1982, in which you requested advice from the State Ethics Commission. Issue: You requested advice as to whether it is a conflict of interest for a former employee of the Department of Aging to provide consulting - contracting services to a county program on the aging. Facts: You were employed by the Pennsylvania Department of Aging as a Field Representative in the Northeast District until October 19, 1981, at which time you were furloughed because the Department of Aging closed all of its district offices. The duties of the District Office where you served have been absorbed or placed in the Department's Bureau of Program and Field Operations (hereinafter, the Bureau). As a Field Representative you could approve or disapprove budgets, expenditure reports, and program reports at the county level. You also monitored area Agency on Aging Programs and reported your findings to your superiors. The counties in which you were responsible were Schuylkill, Monroe, Clinton, and Lycoming. We assume that within these counties your authority to approve budgets was restricted and circumscribed by Department of Aging guidelines and that you played no role in the establish- ment of the over -all allocation or formula for funding area agency programs. On October 21, 1981, you entered into a contract with the County Commis- sioners of Schuylkill County to assist their area Agency (Aging) Program. You currently provide services under this contract of the following nature: 1. Provide bookkeeping and accounting services. 2. Review existing accounting system with the Agency's staff and recom- mend changes to improve same. 3. Provide Agency staff with assistance in training relating to existing system. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Frederick N. Eck, Public Accountant August 9, 1982 Page 2 4. Review and update the Agency's accounting manual. 5. Provide other types of financial services deemed necessary by the Agency. Discussion: As a former "public employee" your conduct is governed by the Ethics Act and in addition, your conduct while you were serving as a public employee was governed by the Ethics Act. We will address the question of your conduct as a former public employee first. A former public employee must mainly be concerned with the provisions of Section 3(e) of the Ethics Act, 65 P.S. 403(e). This provision of the Ethics Act states that: No former official or 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). We assume that in the acquisition of the contract with the County Commis- sioners of Schuylkill County and their program on aging that it was not necessary and it will not be necessary for you to appear or represent the Commissioners of Schuylkill County or their program before the Bureau for the one -year period outlined in Section 3(e). Such representation would be prohi- bited and, therefore, should not occur. Tncidentally, because the District in which your authority was exercised is no longer in existence we must conclude that the "governmental body" with which you are associated is the Bureau, which has succeeded to the responsibility previously exercised by the District Offices. Likewise, for the one -year period you may not engage in the following activities: 1. Personally appear before the Bureau, including but not limited to negotiations on contracts; 2. Attempt to influence that body; 3. Represent any person on a specific case, matter or contract over which you had direct supervision, involvement or responsibility while employed by the Department of Aging; C L Frederick N. Eck, Public Accountant August 9, 1982 Page 3 4. Lobbying, that is representing the interest of any person before the Bureau as to legislation, regulations, etc. See Morris, 80 -039 and Russell, 80 -048; 5. Signing and submitting under your own signature proposals, contracts, or other items to the Bureau; 6. Including your name on a bid proposal as an individual who would be involved in administering any contract to provide technical assistance which is subject of a contract proposal referenced in No. 5 above. See Dalton, 80 -056 and Kilareski, 80 -054. While these restrictions must be imposed in order to avoid any violation of Section 3(e) or even the appearance of any impropriety, you may engage in the following activities: A. You may administer, rather than negotiate, any contract that is to be awarded to any future employer or client by the Bureau so long as that contract is awarded without your name being included as noted in items No. 5 and 6 above. Included here is the ability to generally handle the budget and financial affairs of the County Aging Program so long as you do not "represent" any person as prohibited above. B. You may make general informational inquiries of any agency so long as no attempt is made to influence the Bureau as noted above. C. You may utilize the knowledge and expertise gained during your tenure as a public employee vis -a -vis consulting clients or new employers except as set forth above. D. You may appear and represent any person on behalf of any client or new employer before any governmental body other than the Bureau. In addition, we must note that the areas over which you had jurisdiction while you were employed by the Department of Aging did include some super- vision over the budget and expenditure reports of the Schuylkill County Agency on Aging. As such, we caution you that there should have been no use of your public office or your public employment to approve or pre - approve any contract that you would then be awarded by the Schuylkill County Commissioners. The information which you have provided does not indicate that there has been any impropriety in this regard and there is generally, no violation of the Ethics Act in your contracting with the County even if some funds for your contract are approved by the Pennsylvania Department of Aging so long as there has been no improper approval as set forth in this paragraph and so long as there is no representation by you before the Bureau as set forth in the previous para- graph. Frederick N. Eck, Public Accountant August 9, 1982 Page 4 Conclusion: As a former public employee your conduct should be guided by this Advice. Prohibitions in the activities allowable are noted above and should be met. In addition, as a 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. Accordingly, such Financial Interest Statement should be provided by May 1, 1982 and should be provided immediately if it has not already been provided. 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 will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /rdp cc: Gorham L. Black, Jr. Secretary Aging Sijcerel Sandra S. Christianson General Counsel