HomeMy WebLinkAbout83-606 MulvihillMailing Address
STATE ETHICS COMMISSION
P.O. BOX 1179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
October 27, 1983
ADVICE OF COUNSEL
Mr. Phillip J. Mulvihill
104 June Drive
Camp Hill, PA 17011
RE: Representation, Restrictions, Section 3(e)
Dear Mr. Mulvihill:
83 -606
This responds to your letter of August 22, 1983, in which you requested
Advice from the State Ethics Commission.
Issue: You would like to know what restrictions will be placed upon you, as a
former public employee in your future contact with the Office of
Administration upon your employment in the private sector.
Facts: You were the former Director of the Central Management Information
Center (CMIC) of the Office of Administration. According to the job
description of this position, you were responsible for directing the State's
Central Automatic Data Processing Center. You were responsible for directing
the design, installation, and maintenance of a variety of highly complex and
specialized systems which you have adapted to automatic data processing
methods by the Office of Administration. You were also responsible for
developing and operating automatic data processing systems having a broad,
applicability across all Commonwealth agencies. You supervised a large staff
of professional and technical personnel and you directed the development,
implementation and maintenance of the total central scheduling system as well
as providing in- service and formal training programs for operators,
programmers, and other technical personnel working with specific centralized
programs.
From the information you provided over the phone on October 26, 1983, it
is apparent that you reported directly to the Secretary for Administration,
but had no authority beyond CMIC. You would not, for exapmle, review
computer /systems requests or purchases from other agencies. Such purchases
were handled by the requesting agency with Department of General Services
assistance.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Phillip J. Mulvihill
October 27, 1983
Page 2
You are aware that the Ethics Act imposes restrictions upon former public
employees, and you have asked:
a. whether you can contract with State agencies;
b. whether you can work for companies who do business with the State
where you have been directly involved in contracting with those
companies as a State employee; and
c. whether you can work for a private employer on a contract with a
State agency.
You would also like the Ethics Commission to elaborate on any other
restrictions imposed upon you as a former public employee by the Ethics Act.
Discussion: As the Director of the Central Management Information Center of
the Office of Administration hereinafter, CMIC, you were a "public employee"
subject to the Ethics Act, 65 P.S. 401 et seq. Upon leaving CMIC you became a
"former public employee." Section 3(e) of the Act, applicable to you as a
"former public employee ", states that:
(e) 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).
From the job description which you enclosed with your request for Advice,
we conclude that the governmental body with which you were associated is CMIC
This is because your area of authority and responsibility extended only to
CMIC. Thus, the one -year restrictions apply only to your representation of
persons before CMIC. You would, therefore, not be precluded from working with
State agencies other than CMIC for the year after your termination of
employment with the Commonwealth.
The Ethics Commission has determined that the "representation" prohibited
by Section 3(e) extends to such activities:
1. personal appearances before the governmental body with which you
were associated, here CMIC,including but not limited to negotiations
or contracts with that body;
2. attempts to influence that governmental body;
3. participation in any manner before CMIC in any case over which you
had supervision, direct involvement, a responsibility while employed
by that office; and
Mr. Phillip J. Mulvihill
October 27, 1983
Page 3
4. lobbying, that is representing the interests of any person before
the governmental body in relation to legislation, regulations, etc.
See Russell, 80 -048; and Seltzer 80 -044. •
The mere act of preparing and signing a proposal or of having your name
appear as the person who will serve in regard to the proposal (such as
technical advisor) constitutes an attempt to influence your former
governmental body, should such a proposal be presented to or be reviewed by
either CMIC. Kilareski, 80 -054. This is because the inclusion of your name
on the proposal has the potential of influencing the decision of the
governmental body with which you were associated and is, therefore, prohibited
within the one -year after you leave public employment. -
While these restrictions apply to you for one year following your
termination of service with the Commonwealth vis -a -vis CMIC, you may,
nevertheless, engage in the following activities even within the one year
period:
A. administer, rather than negotiate or re- negotiate, any contract that
exists or is to be awarded to your future employer so long as the
contract is entered into without the inclusion of your name as noted
herein;
B. make general informational inquiries of CMIC as long as no attempt
is made to influence those offices as prohibited above;
C. utilize the knowledge and expertise gained during your tenure as
a public employee so long as you do not use any confidential
information gained during that time; and
D. appear and represent any person on behalf of any client or new
employer before any other governmental body, except before CMIC.
Finally, the specific questions which you outlined in your request for
Advice are addressed below:
a. You ask whether, under the Ethics Act, you may in the future
contract with other state agencies. In light of the above
discussion, you, or any firm which you may work for, would not
generally be precluded from doing business with State agencies other
than CMIC. Restrictions on your activities, as discussed above,
apply to your representation of any clients or any firm before CMIC.
A firm which you might own, manage, or work for could do business
with OA (other than CMIC) or any state agency or entities so long as
you do not personally appear or represent the firm before CMIC, and
Mr. Phillip J. Mulvihill
October 27, 1983
Page 4
do not allow your name to appear as preparer or advisor on any
documents which are submitted to CMIC or to other entities where you
know or have reason to know these documents will be submitted to the
CMIC for review /approval.
b. You ask whether, you may be employed by companies which do business
with the State that you have been directly involved in contracting
with as a State employee. The fact you may have been directly
involved with contracting with some of the companies or firms with
which you may seek employment and that they may have contracted with
the State does not preclude your employment with them as long as
Section 3(b) is not violated. Section 3(b) of the Ethics Act
states:
(b) No person shall offer or give to a public official or
public employee or candidate for public office or a member
of his immediate family or a business with which he is
associated, and no public official or public employee or
candidate for public office shall solicit or accept,
anything of value, including a gift, loan, political
contribution, reward, or promise of future employment
based on any understanding that the vote, official action,
or judgment of the public official or public employee or
candidate for public office would be influenced thereby.
65 P.S. 403(b).
c. Finally, you ask whether you may work for a private employer on a
contract with a State agency. Again, the restrictions which apply
to you have been enumerated above and these restrictions will apply
to you for the one year period following your retirement from State
service. You may administer but not negotiate or re- negotiate such
a contract which was awarded prior to your leaving the state or
awarded in compliance with the standards of 1 -4 and, in particular,
you must not allow your name to appear on proposals designed to
secure same (see A and No. 1 above).
Conclusion: Upon your termination of service with the Commonwealth, you will
become a former public employee subject to the restrictions imposed by the
Ethics Act under Section 3(e). Your conduct must conform to this Advice, and
you should take note of both the prohibited and allowable activities as
discussed above.
Additionally, as a former public employee, you must file a Financial
Interest Statement for each year in which you held the position and for the
year following your termination of service. Thus, a Statement of Financial
Interest should be filed no later than May 1, 1984, which represents the
filing required for the year following your termination of service.
Mr. Phillip J. Mulvihill
October 27, 1983
Page 5
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.
CW /rdp
cc: Mr. Tom Topolski
Sincerely,
cz Sandra S. ristianson
General Counsel