HomeMy WebLinkAbout87-623 DietrichMr. Wayne L. Dietrich
315 Glendale Drive
Shiremanstown, PA 17011
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
Odctober 21, 1987
ADVICE OF COUNSEL
87 - 623
Re: Former Public Employee; Section 3(e), Director of Corporation Bureau,
Department of State
Dear Mr. Dietrich:
This responds to your letter of October 5, 1987, 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
Department of State.
Facts: You state that you are currently the Director of the Corporation
Bureau, hereinafter Bureau in the Department of State, hereinafter Department.
And, as such, are responsible for supervising the flow of documents through
the Bureau consisting of articles of incorporation, Uniform Commercial Code
filings and other similar documents, which are routinely filed by subordinates
of the Director. You state that in your capacity as Director, you render no
legal advice, take no action or make no recommendations regard the filing of
these documents. You state that you intend to become associated with a
corporation which would provide a business service for individuals, entities
and corporations that might require assistance in preparing or filing
documents with the various departments or agencies of the Commonwealth. You
further state that approximately 40% of the time would be devoted to filing
services relative to the departments or agencies other than the Department
while 60% of the time would be devoted to those services relative to the
Department. Specifically, as to the Department, the service would entail
physically delivering documents to the Bureau, physically picking up
certificates of incorporations after issuance and requesting and retrieving
copies of previously filed documents. You further state that if you have
inquiries with the Bureau, it would be in the nature of requesting general
Mr. Wayne L. Dietrich
October 21, 1987
Page 2
information which is available to all members of the general public. You note
that the filings in which your business would engage would not deal with
matters of policy nor the approval or disapproval on the merits or demerits of
a particular filing but would be limited to formatted or mechanical filings
and retrieval requests. You also state that you would not use confidential
information which was not available to the public in your business enterprise.
Lastly, as to those applications or documents which would require filing, you
state that it would not be done in the capacity other than that which would be
available to the general public and that the filing would be in the nature of
a licensed application with the Motor Vehicle Bureau or the filing of a tax
return as a preparer. You add that you do not anticipate that you would be
required to sign these documents on a regular or routine basis.
Your job description /specification which is incorporated herein by
reference provides that your duties as Director of the Bureau entail reviewing
the procedures and laws relative to the filing of the documents, reviewing
budgetary matters, analyzing personnel needs and establishing Bureau goals and
objectives. Furthermore, you have the responsibility of supervising the
processing of documents through the Bureau, as well as providing information
relative to those documents. You are further required to handle matters for
the executive staff, resolve legal issues and other problems concerning filing
procedures. You also review and analyze proposed legislation which would
impact upon the Bureau and the public dealing with the Bureau. Lastly, you
perform any other duties as is necessary in the performance of your position
as Director of the Bureau.
You then request what restrictions would be imposed upon you by the
Ethics Act following the termination of your state service followed by the
undertaking of the business activity as outlined.
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 w i l l 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 Director for the Bureau, 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.;
Mr. Wayne L. Dietrich
October 21, 1987
Page 3
•
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 Department. 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 Bureau. Thus, the
"governmental body" with which you have been "associated" upon the termination
of your employment would be the Bureau. Therefore, within the first year
after you would leave the Department, 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 or
entities 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. 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:
Mr. Wayne L. Dietrich
October 21, 1987
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, 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.
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;
2. Attempts to influence the Bureau;
3. Participating in matters before the Bureau over which you had
supervision, direct involvement, or responsibility while employed by the
Department;
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 Kilareski, 80 -054. Therefore, within the first year after you leave the
Department, 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 by the
Bureau, is not prohibited as "representation." See Kotalik, 84 -007.
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 making general informational inquiries 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.
Mr. Wayne L. Dietrich
October 21, 1987
Page 5
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 Director of the Bureau, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Department, 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.
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 w i l l 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.
Sincerely,
Vincent J. Dopko
General Counsel