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HomeMy WebLinkAbout86-630 Klock• Jack L. Klock 420 N. Raltimore Avenue, 06 Mt. Holly Springs, PA 17065 Dear Mr. Klock: Mailing Address: STATE ETHICS COMMISSION P.O. Box 1 1470 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 5, 1986 ADVICE OF COUNSEL • • 86 - 630 Re: Former Puhlic Employee; Section 3(e), Drug and Alcohol Program Analyst, Office of Drug and Alcohol Programs This responds to your letter of October 31, 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 Department of Health. Facts: You are currently employed as a Drug and Alcohol Programs Analyst II for the Office of Drug and Alcohol Programs in the Pennsylvania Department of Health. This Office allocates funds to 46 single county authorities for the provision of prevention, intervention and treatment services throughout the Commonwealth. You advise that single county authorities suhcontract with local providers for the delivery of all or part of the service provisions. You advise that one of the county authorities receiving funds is the Rlair County Single County Authority. This authority contracts with Altoona Hospital for the provision of services as a subcontractor. You advise that you have applied for a position as a community development coordinator with the Altoona Hospital. Generally, in this position you would he responsible for designing, implementing, coordinating and evaluating a comprehensive drug and alcohol ahuse prevention program. As part of your functions, you would he coordinating prevention project activities with consultants on a regular hasis; initiating and maintaining contact with the administration in Rlair County School Districts; providing information and training on prevention programming; designing and implementing prevention programs; coordinating services with other human service agencies and maintaining contact with state -wine systems of prevention practitions in order to keep informed on prevention programming. In addition to the foregoing, you would he maintaining prevention program compliance with State licensure compliance including the Pennsylvania Department of Health. You would compile quarterly State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Jack L. Klock December 5, 1986 Page 2 statistics for the State uniform Data Collection System. You advise that it is possible that in your new position you would have direct contact with the Office of Drug and Alcohol Programs in several areas. These contacts would include preparing the records of the program for annual approval inspections by the Office of Drug and Alcohol Programs, requesting and receiving technical assistance from that office or contractors thereto, submission of client service reports to that office and incidental other contacts such as conferences. We have reviewed your job description for the position which you currently hold and have incorporated that document herein by reference. You currently serve as a Programs Analyst II in the Bureau of Program Services. This Bureau is administratively within the Office of Drug and Alcohol Programs and is supervised by a Deputy Secretary. There are two other Bureaus within the Office; the Bureau of Community Assistance and the Bureau of Program Development and Implementation. In your position you were primarily responsible for the dissemination and monitoring of special prevention demonstration grants to single county authorities. You also performed duties and responsibilities as follows: Assess quality of school and community based statewide prevention projects. Facilitates the provision of technical assistance in the areas of: needs assessment, program development, program management and evaluation. Analyzes the problems of and develops strategies to address the substance abuse prevention needs of special populations. Reviews and critiques the prevention sections of the county plans for compliance with philosophy and policies. Assists in providing technical assistance to the Division of Monitoring on the prevention of UDCS system. Assists in developing prevention related requests for proposals and prepares and reviews recommendations of proposals for grant awards. Analyzes UDCS prevention data, compiles reports for strategic plans and other sources as directed. Advises on new and innovative programs and program development strategies in primary prevention. Jack L. Klock December 5, 1986 Page 3 Assists i n the statewide di ssemi nation and trai ni ng of nnovative prevention programs. Researches, collects and maintains innovative state and national prevention activities for reference and referral. Communicate with community and human service organizations to apprise them of new and revised statewide prevention activities. 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 Drug and Alcohol Program Analyst for the Office of Drug and Alcohol Programs in the Pennsylvania Department of Health, 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. Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Office of Drug and Alcohol Programs. 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 Jack L. Klock December 5, 1986 Page 4 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 exercised within the Bureau of Program Services. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Bureau of Program Services, hereinafter the Bureau. Therefore, within the first year after you would leave the Department of Health, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Bureau. The Ethics Act would not affect your ability to appear before agencies entities or bureaus other than with respect to the Bureau. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department of Health. 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; Zwikl, 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 followi ng 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 governmental body or bodies with which you have been associated (that is the Bureau) including, but not limited to, negotiations or renegotiations on contracts with the Bureau; Jack L. Klock December 5, 1986 Page 5 2. Attempts to influence the Bureau; 3. Participating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by the Department of Health; 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, constitutes an attempt to influence your former governmental body. See Kil areski , 80 -054. Therefore, within the first year after you leave the Department of Health, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Bureau. Once again, however, your activity in this respect should not be revealed to the Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from maki ng general i nformational i nqui ries of the Bureau 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 Bureau 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). Conclusion: As a Drug and Alcohol Program Analyst, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Health, 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 Bureau of Program Services Jack L. Klock December 5, 1986 Page 6 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 fol 1 owi ng your termi nation 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 truthful ly al 1 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. Si nce.r=e1 ohn J. •ntino Gene • Counsel