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HomeMy WebLinkAbout83-628 RaubRussell L. Raub Hoffmansville Road Frederick, PA 19435 RE: Liquor Control Board, Management Analyst II, Section 3(e) Dear Mr. Raub: Marlin Address STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 16, 1983 ADVICE OF COUNSEL 83 -628 This responds to your letter of November 25, 1983, in which you requested advice from the State Ethics Commission. Issue: You ask whether as a Management Analyst II serving with the Liquor Control Board (LCB) you are considered a "public employee" and if so, what restrictions would be placed on you upon your termination of service with the LCB. Facts: You indicate that you are currently employed as a Management Analyst II with the LCB. You indicate that you have never completed a Financial Interest Statement (FIS) while serving with the LCB. Further, you indicate that you are accepting a position in the private sector and will employed in the near future with Bell & Howell as an Associate Sales Representative in the Microfilm Products Division. In this position with Bell & Howell, in addition to marketing to companies in the private sector, you will represent Bell &Howell vis -a -vis the Commonwealth. In this capacity you may be called on to consult with various state agencies and to respond, if necessary, to their requests for proposals. It is important to note that while you were serving with the LCB in your position as a Management Analyst II within the Mangement Services Division, Support Services Bureau of the LCB your duties were described in your job description (incorporated herein by reference) and your duties included at least the following ctivities: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Russell L. Raub December 16, 1983 Page 2 1. You were responsible for analytical studies regarding a request for new forms to determine the need, purpose, justification, quantities involved, and local versus commerical printing and in this capacity recommended changes to proposed forms or existing systems to insure the development of a smoothly functioning system within the LCB. 2. You were responsible for analyzing telephone equipment requests and making recommendations concerning requests which included your analysis with regard to development of telephone stems designed to serve the needs of the central office, district office, distribution renters, and state stores throughout the Commonwealti. 3. You ►sere responsible for participating in office space management through the use and development of floor plans, blue prints, and space surveys. In this regard you were responsible fcr prepa ~ing recommendations for submission to upper management pertaining - `;o the assignment of space throughout the North Office Building. 4. You were responsible for conducting analytical studies regarding tut not limited to mail operations, emergency management, and autonzove equipment utilization. These studies were normall agency -wide in scope and involved extensive contacts at the bureau director and division chief levels. With respect to these projects regarding :he emergency management plan, you were expected to engage in extensive coordination between all bureaus of the agency and the Pennsylvania Emergency Mangement Agency. Additionally, you were expected to conduct special studies of such things as to whether the LCB s`ou'nd own or lease its automotive equipment or whether a mail service bureau should be employed. 5. You were involved in analyzing request for office copying and peripheral equipment and making recommendations concerning such requests. Such recommendations included your anayysis of the user's equipment and requirements and recommending equipment with the proper features to meet these requirements as efficiently and inexpensively as possible. 6. You participate'" in the records management of the Bureaus of Licensensing, Enforcement, Personnel, Legal and MIS and with respect to these Bureaus you made recommendations concerning the establishment or or changes to the records retention and distribution schedules. Russell L. Raub December 16, 1983 Page 3 7. You analyzed requests for approval of filing equipment and made recommendations concerning such requests. Before approving such requests for filing equipment, you had to review records retention schedules of the requesting unit to assure that retention schedules for being adhered to and that retention schedules reflect the shortest retention periods possible. 8. You were responsible for analyzing requests for automatic typewriters and word processing equipment and making recommendations concerning these requests. This task required extensive coordination with the equipment users, vendors, and the Department of General Services. 9. You sat on a five - member committee with the responsibility to evaluate vendor proposals. Discussion: Section 3(e) of the Ethics Act 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). It is clear that this Section of the Act imposes certain restrictions upon the conduct of a "former public employee" upon his termination of service with a governmental body. Thus, before we address the question of the nature or extent of the restrictions which might be imposed upon you, we must determine that you fall within the category of "former public employee" to whom these restrictions would be applicable. The answer to this question centers around the determination of whether or not you were a "public employee" while employed by the LCB. The Ethics Act defines the term "public employee" as follows: "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; Russell L. Raub December 16, 1983 Page 4 "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 402. The regulations of the State Ethics Commission further provide that the definitici of "public employee" shall include the following: Public employee - -- (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where they official action has an economic impact of greater than a de minimus nature on the interests of any person. (i) The term includes any individual: (A) who is employed by the Commonwealth or a political subdivision and who is responsible for taking or recommending official action of a nonministerial natuwe with regard to: (I) contracting or procurement; (II) administering or monitoring grants or subsidies; (III) planning or zoning; (IV) inspecting, licensing, regulating, or auditing any person; or (V) any other activity where the official action has greater than a de minimis economic impact; and (8) who meets the criteria of either subclause (I) or (I1) of this clause: (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: Russell L. Raub December 16, 1983 Page 5 ( -1 -) has the authority to make final decisions; ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes the final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements; and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. (D) Solicitors, engineers, managers, secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. Russell L. Raub December 16, 1983 Page 6 (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare case workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) Schoo teachers and clerks of the schools. 51 Pa. Code 1.1. Although you have not, in your capacity as a Management Analyst il, been required to file a Financial Interest Statement under the Ethics Act to date, it is our determination that from the job description which you have enclosed and from the information in which you have provided, that you have responsibility to take or recommend official action of a non - ministerial nature with regard to contracting and procurement or any other activity where the official action had an economic impact of a greater than de minimus nature on the interests of any person. This is especially true with respect to your ability to make recommendations regarding the requests and purchase of telephone equipment, space assignments, automotive equipment, leasing and purchasing, copying, typing, and word processing equipment analysis in purchasing. Thus, you should have been considered a "public employee" while serving with the LCB as a Management Analyst II. Notwithstanding the fact that the final decision as to these matters may be made at levels much higher than yours, you provided recommendations as a member of the vendor review committee (No. 9, Facts) or otherwise and in general, you provided final technical advice with regard to requests for goods, services, and recommendations regarding purchasing. These activities would bring you within the purview of the definition of "public employee" as that term is set forth in the Ethic Act and the regulations of the Commission. Thus, we must conclude that we were a "public employee" during your tenure with the LCB and upon your termination of such service with the LCB you would become a "former public employee." As a "former public employee" your conduct must conform to the requirements of Section 3(e) of the Ethics Act as set forth above. Particularly, with respect to the one year period following your termination of service with the LCB, you may not represent any individual with or without compensation before the governmental body with which you were associated. We must begin our further review of your request by asking two additional questions: 1) What is the scope of the term and activity known as "representation" and 2) to which governmental bodies do the prohibitions against "representation" extend in your case. We will address this latter question first. From the job description which you have enclosed and based on the information about your job function, we conclude that the governmental Russell L. Raub December 16, 1983 Page 7 body with which you were associated is the LCB. This is because your area of authority and responsibility extended to the entire Bureau of Support Services which dealt with the needs of both the central office, the district offices, the distribution centers, and state stores throughout the Commonwealth. It would difficult to discern that your scope of authority or impact of your duties was not agency -wide. In fact, your own job description indicates that in most instances, the duties that you were performing involved extensive contacts with and responsibility to and for the entire LCB and were not limited to the Bureau of Support Services or the Management Services Division or the Harrisburg office only. Japak, 83 -007. Thus, the one year restrictions set forth in Sections 3(e) of the Ethics Act applies to your "representation" of persons before the LCB in general. You would, therefore, be precluded from "representation" before the LCB. However, you would not be precluded from working with state agencies other than the LCB for the one year following your termination of employment with the LCB. The Ethics Commission has determined that the prohibited activity also known as "representation" described in Section 3(e) of the Act extends to such activities as follows: 1. personal appearances before the governmental body with which you were associated, here the LCB, including but not limited to negotiations on contracts with the LCB; 2. attempts to influence the LCB; 3. participation in any manner before the LCB in a case or matter over which you had supervision, direct involvement, or responsibility while employed by the LCB; and, 4. lobbying, that is representing the interests of any person before the govenmental body (LCB) in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. It should be noted that the mere act of preparing and signing with your own name or having your name appear as the person who will serve in regard to a proposal (such as technical advisor) has been held to constitute an attempt to influence your former governmental body should such a proposal be presented to or review by the LCB and is, therefore, prohibited. See Kilareski, 80 -054. This is because the inclusion of your name as preparer or technical advisor on such a proposal has the potential of influencing the decision of the LCB -- the body with which you were associated -- and is, therefore, prohibited for the one year period after you leave the LCB. Also, where you know or should know that a submission, proposal, etc., you make to another agency will be reivewed by the LCB, your name should not appear on same. See Anderson, 83 -014. Russell L. Raub December 16, 1983 Page 8 While these restrictions apply to ycu for she one year period following your termination of service with the LCE vis- a -vis the LCB, you may, nevertheless work for an employer such as Bell & Howell and nr.y within the one year period following your termination of service engage the following activities: a. You may administer rather than negotiate cr re-negotiate any contract that exists or is to be awarded to your future employer as '.orgy as, the contract or sub - contract is awarded or entered into without the inclusion of your name as noted above; b. You may make general informational inquiries of tt,c '_::B es long as there is no attempt to influence the LCB as prohibited aLcve; c. You may utilize the knowledge and expertise gained curing your tenure as a public employee as long as you do not use any confidertiai information gained during your service as a public employee; aod d. You may appear and represent any person on behalf of any client or new employer before any governmental body except the LCB as €,u.:slned above. Conclusion: As a Management Analyst II with the LCB you should be considered to have been within the classification of "public employee" as that term is set forth in the Ethics Act. Accordingly, upon your termination of service with the Commonwealth you will have become a "former public emp't ogee" subject to the restrictions imposed by Section 3(c) of the Ethics Act. ¥o;jr conduc :t as a 'former public employee" must conform to the requirements of the Act as described in this Advice and you should take note to the prohibited and allowable activities as discussed above. Additionally, as a former public employee you must file a Financial Interest Statement for each year that you held the position described above and for the year following your termination of service. Thus, a Statement of Financial Interests should be filed no later than May 1, 1984, which represents the filing required for the year following your termination of service. 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. Russell L. Raub December 16, 1983 Page 9 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: Phillip Joseph,,LC6 Personnel Sheryl Cohen, Office of Administration Sincerely, Sandra S. Chri tianson General Couns-1