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HomeMy WebLinkAbout87-626 HazzardKelly B. Hazzard, Chief D. E. R. Fulton Building P.O. Box 2063 Harrisburg, PA 17120 Dear Mr. Hazzard: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 October 26, 1987 ADVICE OF COUNSEL 87 -626 Re: Conflict of Interest, DER Division Chief, Former Public Employee Restrictions This responds to your letter of October 20, 1987, in which you requested advice from the State Ethics Commission. Issue: You have requested advice regarding whether the State Ethics Act imposes any prohibitions upon you as a Division Chief in the Automated Technology Bureau of the Department of Environmental Resources (DER) concerning both the obtaining of private employment with a computer firm that has done business with DER and also regarding the restrictions that would be imposed upon you following your termination of state service. Facts: You state that you have been employed by DER for eight years and that your current classification is a Computer Systems Analyst V. You state that you direct the activities of a staff which develops computer systems and that you are involved in all aspects of dealing with outside vendors from evaluating proposals up to and through the final invoicing. You further state that you have dealt with the firm of McDonnell Douglas Corporation which is currently involved in a contract with DER; furthermore, DER is in the process of issuing another request for a proposal on which McDonnell Douglas will in all likelihood bid. It is also stated by you that you have received national exposure through your experience in DER relative to environmental systems and that your career plans are to use your experience so as to obtain a position Kelly B. Hazzard, Chief October 26, 1987 Page 2 that would afford you the opportunity to market environmental systems nationally. You also state that McDonnell Douglas is one of the few companies that has the capacity and corporate approach which p arallels your future career plans. You state that you are finalizing anagreementwithMcDonnell Douglas and ask whether you have conducted your affairs properly and secondly, what restrictions would be imposed upon you relative to future business dealings with the DER as well as with other Commonwealth agencies. Your most recent job description /specification which is incorporated herein by reference, provides that you as a Computer Systems Analyst V in the Systems Development Division of the Automated Technology Bureau are responsible for information systems designs, development and implementation. Further, your position which is both technical and administrative in nature, requires that you direct the functions of the Systems Development Division to develop systems utilizing main frame computers and a complex communication network. You also represent DER on the Commonwealth EDP Steering Committee in the absence of the bureau director and serve on other committees as requested by said director. Furthermore, you direct the preparation and submission of program revision requests as well as the development of short and long range information systems development plans for DER. Further, it is your responsibility to coordinate DER information systems requirements with program heads; staff, direct, supervise and evaluate the performance of personnel; direct managerial and technical training for department personnel; direct the establishment of departmental standards and procedures for analysis, design, programming and documentation for informations systems; direct system studies to develop cost effective /efficient information systems and direct management and monitoring of contracts for systems specifications, design and development with DER. Lastly, you would be required to perform such other duties as are necessary for the position which you hold. Prior to your current positon, you served in the Planning and Analysis Division of the Automated Technology Bureau of DER. Discussion: As a Computer Systems Analyst V for DER a "public employee" within the definition of that term y as set forth in 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 Glenn, 87 -520. As a public employee you are subject to the provisions of the Ethics Act and the .restrictions therein are applicable to you. Kelly B. Hazzard, Chief October 26, 1987 Page 3 Section 3(a) of the Ethics Act provides: Section 3. Restricted activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 403(a). Section 3(a) basically provides that a public employee may not use his public office or confidential information to obtain a gain for himself or a member of his immediate family other than compensation as provided for by law. Section 3(b) of the Ethics Act further provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) basically provides that a public employee may not accept anything of value based upon the understanding that his official action would be influenced thereby. Specifically, the Ethics Act provides that no public official.may use his public office or confidential information received through his holding public office to obtain financial gain for himself or a business with which he is associated and no public official may receive anything of value, including the promise of future employment, on the understanding that his official conduct will be influenced thereby. See Section 3(a) and (b) of the Ethics Act, 65 P.S. 403(a) and (b). Thus, Section 3(b) of the Ethics Act would not prohibit you from accepting a position with McDonnell Douglas unless the position was offered .based upon the understanding that your official conduct, while working for DER, was influenced by such offer. It is assumed that such a situation does not exist herein. Kelly B. Hazzard, Chief October 26, 1987 Page 4 Upon termination of your employment with DER, you would become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides: 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(e). Initially, to answer your request we must identify the "governmental body" with which you were associated while working with DER. 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 Automated Technology Bureau. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Automated Technology Bureau. Therefore, within the first year after you would leave DER, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Automated Technology Bureau. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Automated Technology Bureau. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from DER. 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: Kelly B. Hazzard, Chief October 26, 1987 Page 5 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 Automated Technology Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Automated Technology Bureau; 2. Attempts to influence Automated Technology Bureau; 3. Participating in any matters before the Automated Technology Bureau over which you had supervision, direct involvement, or responsibility while employed by DER; 4. Lobbying, that is representing the interests of any person or employer before the Automated Technology 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 Automated Technology Bureau, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave DER, 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 Automated Technology Bureau, is not prohibited as "representation." See Kotalik, 84 -007. You may, assist in the preparation of any documents presented to the Automated Technology Bureau so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Automated Technology Bureau. Once again, however, your activity in this respect should not be revealed to the Automated Technology Bureau. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general ;informational inquiries of the Automated Technology Bureau to secure Kelly B. Hazzard, Chief October 26, 1987 Page 6 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 Automated Technology 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. It should also be noted that the Ethics Commission has only addressed your request under the Ethics Act; it has not considered the applicability of any other statute, code, regulation, or ordinance or other codes of conduct such as the Governor's Code of Conduct or State Adverse Interest Act. Conclusion: As a Computer Systems Analyst V, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with DER, 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 Automated Technology 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 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. Sincerely, Vincent Y. Dopko General Counsel