HomeMy WebLinkAbout86-612 DeringMailing Address:
STATE ETHICS COMMISSION
P.O. BOX 11470
HARRISBURG, PA 17108
TELEPHONE: (717) 783-1610
Octoher 8, 1986
ADVICE OF COUNSEL
•
Ms. Nancy Z. Dering 86 -612
2327 North Second Street
Harrisburg, PA 17110
Re: Former Public Employee; Section 3(e), Employee Training and Development
Manager, Office of Administration
Hear Ms. Dering:
This responds to your letter of Septemher 9, 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 Governor's
Office of Administration.
Facts: You indicate that you have recently resigned your position as an
Employee Training and Development Manager in the Governor's Office of
Administration. This resignation will take effect on October 15, 1986. In
your position with the Office of Administration, you are assigned to the
Office of Personnel Services, Division of Training and Development. You
served in the capacity of Employee Training and Development Manager.
Generally, this position is one of responsihle management, administrative and
technical work regarding the coordination and implementation of the state -wide
Employee Training and Development Program. You were responsible for planning,
developing, directing, promoting and evaluating a wide variety of general and
specialized training programs for state employees. You coordinated employee
training for various state agencies and you also were involved in promoting
and implementing interagency training policies. You were involved in the
policy formulation of training programs and also in the development of
specialized training courses. You developed and recommended state -wide
training policy to the director of personnel and conducted or participated in
management meetings to expand and improve training efforts in all agencies of
the Commonwealth. In addition to the foregoing, you are also involved in
administering all phases of the division programs, including staffing,
budgeting, facilities and equipment acquisition, ordering of resources,
supplies and other administrative functions. We have reviewed your job
description as well as your position specification (0535) and have
incorporated those documents herein by reference.
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Ms. Nancy Z. Dering
October 8, 1986
Page 2
You advise that you will be establishing your own consulting firm and you
have, therefore, requested the advice of the State Ethics Commission as to any
restrictions that will be placed upon your future employment 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 an Employee Training and Development Manager for the Training and
Development Division of the Bureau of Personnel in the Governor's Office of
Administration, 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. See O'Connor, 79 -507.
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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with the Office of
Administration. 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).
Ms. Nancy Z. Dering
October 8, 1986
Page 3
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 exercised generally within the
Governor's Office of Administration. Additionally, we note that your job
description and the classification specification for your position indicates
that you may have had influence and responsibility in relation to the
implementation of training programs for a number of state agencies within the
executive branch. As a result of your duties and responsibility in relation
to such other state agencies, your governmental body would be extended to such
other state agencies to the extent that you were responsible for recommending
or otherwise influencing said agency to implement certain types of training or
development programs. Thus, your governmental body and the Ethics Act
restrictions related thereto could be extended to any any executive branch
agency where you have played a role in recommendi ng or implementing training
and development programs for said agency. Because of the general nature of
your job description, the specific determination of the governmental bodies
which would be included in this category is not possible. However, if further
questions should arise in relation to this matter, you are advised to seek the
further advice of this Commission. Thus, the " goverrmental body" with which
you have been "associated" upon the termination of your employment would be
the Office of Administration, hereinafter the Office, and any other state
agency or division thereof with which you were involved as set forth above.
Therefore, within the first year after you would leave main Office of
Administration, Section 3(e) of the Ethics Act would apply and restrict your
"representation" of persons or new empl oyers vi s-a-vi s your governmental
bodies as indicated above.
The Ethics Act would not affect your ability to appear before agencies -or
entities other than with respect to the Office of Administration and other
goverrmental bodies as set forth above. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Office of Administration. 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:
Ms. Nancy Z. Bering
October 8, 1986
Page 4
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, 1 obbyi ng, 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. '"
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
which you have been associated, (that is
related governmental bodies), including,
renegotiations on contracts with the the
governmental bodies;
governmental body or bodies with
the Office of Administration and
but not limited to, negotiations or
Office of Administration and related
2. Attempts to influence the Office of Administration and related
governmental bodi es;
3. Participating in any matters before the Office of Administration and
related governmental bodies over which you had supervision, direct
involvement, or responsibility while employed by the Commonwealth of
Pennsylvania;
4. Lobbying, that is representing the interests of any person or
employer before the Office of Administration and related governmental bodies
as previously indicated 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
your goverrmental bodies, constitutes an attempt to influence your former
governmental body. See Ki l areski , 80 -054. Therefore, within the first year
after you leave Commonwealth employment, you should not engage in the type of
activity outlined above.
You may, assist in the preparation of any documents presented to the
Office of Administration and related governmental bodies so long as you are
not identified as the preparer. You may also counsel any person regarding
that person's appearance before your governmental bodies. Once again,
however, your activity in this respect should not be revealed to the Office of
Admi nistration and related goverrmental bodies. Of course, any ban under the
Ms. Nancy Z. Dering
October 8, 1986
Page 5
Ethics Act would not prohibit or preclude you from making general
i nformational i nqui ries of the aforementioned governmental bodies 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 governmental bodies your
representation of, or work for your new employer.
Finally, the Commission has concluded that if you are - administering an
exi sting 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).
Conclusion: As an Employee Training and Development Manager, you are to be
considered a "public employee" as defined in the Ethics Act. Upon termination
of your service with the Governor's Office of Administration, 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 Office of Administration
generally, and any other state agency or division, bureau or branch thereof
for which you had responsibility influence or duties in implementing or
recommending the implementation of programs and policies related to employee -
training and development.
Further, should you termi nate 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.
Ms. Nancy Z. Dering
October 8, 1986
Page 6
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.
Si ncerefy,'>
ohn J. •n ino
Gene . Counsel