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HomeMy WebLinkAbout86-589 KenneyPaul I. Kenney 855 Market Street P.O. Box 384 Lemoyne, PA 17043 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 29, 1986 ADVICE OF COUNSEL 86 - 589 RE: Former Public Employee; Section 3(e), Transportation Utility Manager, Public Utility Commission Dear Mr. Kenney: This responds to your letter of July 1, 1986, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Pennsylvania Public Utility Commission. Facts: On February 4, 1986, you retired from your position with the Public Utility Commission. You held the position of Transportation Utility Manager, Finance Division, Bureau of Transportation. You advise that you have formed a corporation, P. I. Kenney Associates, Inc. This Corporation will be involved in providing consultant services for transportation activities including applications for authority, traffic changes and associated financial justifications and transfer of authority. In your position with the Public Utility Commission you were generally responsible for administrative and supervisory work in managing a division involved in the review and analysis of tariffs, annual reports, applications and other financial data required to be filed by transportation utilities to justify service rates or other financial transactions. Generally, you are responsible for planning, directing and controlling the activities of the division. The individuals in your division were responsible for the analysis and acceptance of tariffs, annual reports, petitions, applications for mergers, consolidation, securities issuance, incorporations, charter amendments, stock acquisitions, purchase /sale of carrier rights regarding transportation utilities. You performed cash flow analysis of transportation utilities for proper allocation and financial conditions, and made recommendations to the bureau director and the commission in relation thereto. You also conferred with utility representatives, counsel, accountants or Paul I. Kenney July 29, 1986 Page 2 owners concerning major transactions. You were responsible for advising the bureau director, the commissioners on technical financial matters, and making recanmendations in relation thereto. You also assisted in formulating general policies. You arranged and conducted conferences with carriers regarding rate structures and advised on methods of presentation to the commission of the financial data required for rate increases. We have reviewed your classification specification (7973) and have incorporated that document herein by reference. You have requested the advice of the State Ethics Commission in relation to whether any prohibitions would be place upon you within the purview of the State Ethics Act. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not, offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Transportation Utility Manager for the Public Utility Commission, hereinafter the Commission, you are to be considered a "public employee" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of this employment, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (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. Paul I. Kenney July 29, 1986 Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Commission. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been the Commission, generally. This is so specifically in light of your responsibility to advise the bureau director and the commissioners on technical financial matters and to make recommendations thereon and assist in the formulation of general policies. Thus, the "governmental body"' with which you have been "associated" upon the termination of your employment would be the Commission. Therefore, within the first year after you would leave the Commission, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Commission. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Commission. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Commission. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwi kl , 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. Paul I. Kenney July 29, 1986 Page 4 The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Commission), including, but not limited to, negotiations or renegotiations on contracts with the Commission; 2. Attempts to influence the Commission; 3. Participating in any matters before the Commission over which you had supervision, direct involvement, or responsibility while employed by the Commission; 4. Lobbying, that is representing the interests of any person or employer before the Commission in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Commission, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Commission, you should not engage in the type of activity outlined above. (The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed is not prohibited as "representation." See Kotalik, 84 -007). You may, assist in the preparation of any documents presented to the Commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Commission. Once again, however, your activity in this respect should not be revealed to the the Commission. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of (4) to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Commission your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Additionally, we note that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). Paul I. Kenney July 29, 1986 Page 5 Conclusion: As a Transportation Utility Manager, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Public Utility Commission, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Public Utility Commission. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests 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. 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. Sinc n �. no Gener. Counsel