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HomeMy WebLinkAbout83-594 SimmonsMr. Richard W. Simmons Managing Director Total Comp, Incorporated 968 Easton Road, Suite G Warrington, PA 18976 Mating Address. STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: 1717) 783 -1610 September 23, 1983 ADVICE OF COUNSEL RE: Representation, Former Public Employee - Zoning Officer, Section 3(e) Dear Mr. Simmons: This responds to your letter of August 5, 1983, in which you request advice from the State Ethics Commission. Issue: You would like to know what restrictions are imposed on you by the Ethics Act upon your termination of employment with a Township insofar as you are now serving as the Managing Director of a corporation. Facts: From May 10, 1982 until April 8, 1983 you were employed by New Britian Township, Bucks County, hereinafter the Township, as a part -time Assistant Zoning Officer. Your duties were primarily zoning matters and you worked an average of 20 hours per week in this capacity. Since April 11, 1983, you have been working in the position of Managing Director of Total Comp, Incorporated. You also own 20% of Total Comp, and the main product which Total Comp produces or markets is an employee benefits booklet that identifies the fringe benefits available to and provided to employees and outlines the costs associated with each benefit. You also indicate that recently the Township has requested that Total Comp provide the Township with services. You are also interested in whether, even if the Township does not solicit the services of Total Comp, there are any restrictions upon Total Comp soliciting business from the Township. Discussion: While employed by the Township in the capacity of Assistant Zoning Officer where you were, we assume, responsible for taking or recommending official action with relation to zoning matters, you must be considered a "public employee" within the definition of that term as set forth in the Ethics Act. Therefore, upon the termination of your service with the Townhship, you became a "former public employee." The Ethics Act regulates State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 83 -594 Mr. Richard W. Simmons September 23, 1983 Page 2 the conduct of both present and former "public employees" to assure the public of the independence and impartiality of its servants. Therefore, you must be aware of and abide by the restrictions upon "representation" which relate to any "former public employee" as delineated by Sectio :1 3(e) of the Ethics Act which provides as follows: (e) No former official or public ,.p ioyee 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). With this restriction in mind it is important to discuss what the term "representation" means. In general, the Commission has determined that the prohibition of Section 3(e) of the Ethics Act and the term "representation" extend to and prohibit -- within the first year after leaving public service - -- such activities as: 1. personal appearances before the governmental body with which you were associated, including but not limited to negotiations on contracts with the governmental body, in this case the Township; 2. attempts to influence that body, that is the Township; 3. participating in any manner before the Township in any case or matter over which you had supervision, direct involvement, or responsibility while employed by the Township; 4. lobbying, that is representing the interests of any person before the Township to influence that body in relation to legislation, regulations, etc; 5. Signing and submitting, under your own name, bids or proposals which list your name as preparer or person to provide technical assistance thereon. Dalton, 80 -056 and Kilareski, 80 -054. Notwithstanding these restrictions upon your activities as set forth above, opinions of the Commission indicate that a former public employee may nevertheless engage in the following activities: a. appear in a third forum such as state or federal court; b. make general informational inquiries of the governmental body (in this case the Township) of the nature made by the public; Mr. Richard W. Simmons September 23, 1983 Page 3 c. utilize the knowledge and expertiese gained during their tenure as public employees except as set forth in No. 1 through 5 above; d. administer any contract that has been awarded or negotiated between the former governmental body and the new employer or new corporation so long as the contract was awarded in accordance with the above restrictions and the former public employee does not attempt to negotiate or re- negotiate the terms or conditions'of same. Thus, in your particular case, the fact that you are a "former public employee" of New Britian Township does not necessarily preclude them from seeking the services of Total Comp, Incorporated. Likwise, Total Comp, Incorporated as a corporation is not precluded from offering its services to the Township. So long as you, personally, do not engage in any prohibited "representation" before the Township (see Numbers 1 through 5 above) Total Comp may solicit or present proposals to the Township. After the Township has obtained or Total Comp has provided proposals to the Township or secured a contract with the Township without your name appearing on any proposals as either the preparer or the individual who would provide technical assistance under the contract (see No. 5 above), you could administer the contract awarded under such circumstances. There would be no prohibited "representation" assuming the contract between the Township and Total Comp, Incorporated were awarded without your participation, if you were to subsequently administer this contract or secure information needed to prepare a booklet or a brochure setting forth the fringe benefits available to Township employees. Conclusion: Your conduct as a "former public employee" of the Township and your relations with the Township within the first year after you left the Township's service insofar as Total Comp may seek to do business with the Township, should conform to the above restrictions. 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. Mr. Richard W. Simmons September 23, 1983 Page 4 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 thin Advice pursuant to 51 Pa. Code 2.12. SSC /rdp Sincerely, dra S. Chr). ianson General Counsel