HomeMy WebLinkAbout83-621 WertMailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
December 1, 1983
ADVICE OF COUNSEL
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
Organization & Management Services
Energy Consultants
Riverside Office Center
2101 N. Front Street
Harrisburg, Pennsylvania 17110
RE: Representation, Section 3(e)
Dear Mr. Wert:
83 - 621
This responds to your letter of October 28, 1983, in which you, as a
former public employee, requested advice from the State Ethics Commission.
Issue: You would like to know what restrictions the Ethics Act places upon
you as a former public employee in your future contact with your former public
employer, the Department of Community Affairs.
Facts: From January, 1982 through June 15, 1983, you were employed by the
Department of Community Affairs as Chief, Program Development Division. In
that capacity, you prepared proposals and plans for weatherization, and you
were responsible for the technical aspects of energy program development,
administration of programs, and supervision of subordinate professional and
support staff. You state that you did not have sign -off or approval authority
for funding, programs, or grantees, and that you reported to. the Director,
Bureau of Community Energy.
Your job description (which is incorporatated hereby reference) provides
details of your post including:
1. design of energy programs, strategies and techniques;
2. the supervision of related staff activities and coordination of
Bureau activies within the Department and with other departments,
agencies, and organizations;
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
December 1, 1983
Page 2
3. responsible for the overall direction of one of the three major
divisions within the Bureau of Community Energy;
4. management of consultant contracts in conjunction with program
development and implementation.
5. identification of potential sources of program funding and the
design of programs;
6. anaylsis of newly - evolving energy conservation techniques and
programs;
7. the identification of potential funding and financing mechanisms to
support implementation of energy conservation actions;
8. the design of implementation strategies by which these energy
actions can be most effectively incorporated within statewide
programs or established as independent programs;
9. periodic community energy needs assessments in conjunction with
local governments and appropriate agencies to ensure that these
needs are adequately reflected in the design of programs;
10. The conduct of community energy programs on a pilot basis;
Just prior to your resignation, the staff and program functions of the
Bureau of Community Energy, where you job was located, were absorbed by the
Department of Community Affairs, Bureau of Human Resources (BHR).
You are currently employed by a corporation, Energy Consultants,
Incorporated. Energy Consultants seek to work with the Department of
Community Affairs in the improvement and expansion of its furnace efficiency
modification program. Funds to pay for any potential services provided by
Energy Consultants would come from the Department of Community Affairs'
weatherization program. In fact, you have written and signed a letter, dated
August 25, 1983, to Jaynes Edwards, Director of BHR, on behalf of Energy
Consultants offering to perform a variety of "tasks" for BHR and DCA. This
letter is incorporated here by reference, but parts of this letter ere
pertinent and appear below, wherein you state that:
1. "I was instrumental in developing some of the materials for DCA's
existing furnace efficiency modification program. I have followed
progress with the program including a thorough review and
evaluation of over 300 completions. This past experience, along
with my knowledge of weatherization, makes it easier to determine
what current needs exist in order to imporve and expand the
program."
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
December 1, 1983
Page 3
2. We propose completion of the following tasks for DCA (subject
to change after discussions with your staff and you)."
3. "... If you would like to discuss your specific needs in detail or
are interested in the costs of the individual or combined tasks
given above, please let me know."
As a former public employee, you are concerned that some of your
activities with Energy Consultants may be restricted by the provisions of the
Ethics Act, and you have, therefore, requested advice from the State Ethics
Commission in this regard.
Discussion: While employed by the Department of Community Affairs as Chief of
the Program Development Division, you were 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 Department of Community Affairs, you
became a "former public employee." The Ethics Act regulates 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 employee" as delineated by Section 3(e) of the Ethics Act, which
provides as follows:
(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 your job description, we conclude that the governmental body with
which you were associated was the Bureau of Community Energy (BCE) of the
Department of Community Affairs. However, the Bureau of Community Energy was
absorbed by the Bureau of Human Resources (BHR) just prior to your
resignation. Because the BHR absorbed both the staff and program functions of
the Bureau of Community Energy, we conclude that the governmental body with
which you were associated is the BHR. Again, this is because the BHR absorbed
both the staff and the program functions of the BCE. In this light, the
one -year restrictions which applied to your representation of persons before
the Bureau of Community Energy now apply equally to your representation of
persons before the BHR. You are, therefore, precluded from representing any
person before the BHR for the one -year period following your termination of
employment with the Department of Community Affairs.
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
December 1, 1983
Page 4
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 Bureau of
Human Resources;
2. attempts to influence that body, that is the BHR;
3. participating in any manner before the BHR in any case or matter
over which you had supervision, direct involvement, or
responsibility while employed by the DCA;
4. lobbying, that is representing the interests of any person before
the BHR to influence that body in relation to legislation,
regulations, etc.; and
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 BHR) of the nature made by the public;
c« utilize the knowledge and expertise gained during your tenure as
public employee except as set forth in numbersr 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 (see 1 and 5 above, in particular) and the former
public employee does not attempt to negotiate or to re- negotiate the
terms or conditions of the contract.
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
December 1, 1983
Page 5
Thus, in your particular case, the fact that you are a "former public
employee" of the Bureau of Community Energy /Bureau of Human Resources, does
not necessarily preclude the BHR from seeking the services of Energy
Consultants, Incorporated. Likewise, Energy Consultants Incorporated as a
corporation is not precluded from offering its services to the BHR. However,
you are personally precluded from representing Energy Consultants before the
BHR for the one -year period following your departure from DCA and you may not
"represent" Energy Consultants, as described above (1 -5) before the BHR for
that one -year period. These restrictions are personal to you and do not
extend to the members or employees of Energy Consultants, Incorporated other
than yourself. Morris, 80 -034. Energy Consultants may, therefore, receive
the benefit of your expertise even though you personally may not "represent"
this firm or clients before the BHR. So long as any contract between the BHR
and Energy Consultants Incorporated was awarded without your participation,
that is, without your personal appearance and 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.
The more serious concern which arises as a result of your request for
advice is whether, under the Ethics Act and this ruling, your letter of August
25, 1983 to James Edwards, Director of BHR, constitutes prohibited
"representation." Although only the Commission itself may conclusively
determine that this action violates Section 3(e) of the Ethics Act and make
recommendations for prosecution arising therefrom, I must state that in my
opinion, such direct personal solicitations to BHR in general and in
particular with respect to topics formerly within your jurisdiction while you
served with DCA appear to fall squarely within the restrictions outlined
above. You are advised to immediately discontinue any such activity. I also
recommend that you withdraw from any further actions or negotiations which may
be underway as a result of the letter. You would, if negotiating on this
topic, be engaging in prohibited activities within areas No. 1, 2, 3, and
possibly 5 listed, above in my opinion. You should withdraw from such
activity.
Conclusion: In light of the fact that the Bureau of Human Resources absorbed
both the staff and program functions of the Bureau of Community Energy, the
BHR is the "governmental body" with which you were associated. Thus, your
conduct as a "former public employee" of the BHR and your relations vis -a -vis
BHR within the first year after you left public service should conform to the
above restrictions. While it is not within my jurisdiction or authority to
conclude that the activity already undertaken by your letter of August 25,
1983 constitutes prohibited activity, improper representation or a violation
of Section 3(e) of the Ethics Act, you should discontinue such activity,
withdraw from any personal, direct contracts and negotiations arising as a
result of this matter and conform your conduct to the requirements of the
Ethics Act as outlined above. If you are unwilling or unable to conform your
conduct to this Advice or to discontinue this activity, this matter will be
brought to the attention of the full Commission.
Mr. Jonathan M. Wert, Jr., Ph.D., Manager
December 1, 1983
Page 6
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: Carol Cocheres, Esquire
Fred Brooks, DCA Personnel
James Edwards, Director
Shirley Dennis, Secretary
Sincerely,
Sandra S. Christianson
General Counsel