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HomeMy WebLinkAbout87-640 BoothMr. Frank R. Booth 14 Scholl Road Pottstown, PA 19464 Dear Mr. Booth: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 8, 1987 ADVICE OF COUNSEL 87 -640 Re: Former Public Employee; Section 3(e), Department of Revenue, Deputy Secretary for Enforcement, District Office Administrator This responds to your letter of October 30, 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 Revenue. Facts: In your advice request, you state that you are currently employed as a District Administrator in the Montgomery County District Office (hereinafter Office), Bureau of Field Operations, Department of Revenue, Commonwealth of Pennsylvania. You further state that prior to your effective resignation date of December 16, 1987, you were employed in the position of the Deputy Secretary for Enforcement with the Department of Revenue, hereinafter Department, from November 1985 through June 1987, You also state that after your resignation you will be self - employed as a consultant and may in that capacity have business contacts with employees in the Department. You then ask, under the Ethics Act, what relationship you may have with employees of the Department as a former District Administrator and as a former Deputy Secretary, and what relationship you may have with Department employees based upon the different termination dates as Deputy and District Administrator and lastly, what impact the above two positions would have on relationships with other Commonwealth departments and agencies. Mr. Frank R. Booth December 8, 1987 Page 2 As Deputy Secretary for Enforcement, your duties and responsibilities with the Department consisted of administering and enforceing the collection of Pennsylvania State Taxes at the state and local level and administering and overseeing all auditing field operations and district offices and compliance for the Department. As Administrator for the Office, your duties and responsibilities consisted of planning, organizing, and directing the work or assisting in directing the work of appraisers, investigators and clerical employees engaged in the enforcement of Commonwelath tax law, investigating tax violations, collecting delinquent taxes, and furnishing tax information and assistance to taxpayers in the assigned geographical area. Your duties and responsibilities in the Office also require you to review and analyze program policies and operating procedures and to develop and implement or recommend the implementation of program revisions. Lastly, you are also required in your duties to direct office activities, evaluate employee performance, review leave request for approval, interview and recommend employee selection, evaluate employee training needs and receive and resolve or recommend the resolution of grievances and complaints as to the Office staff. Discussion: As a Administrator for the Office and former Deputy Secretary for Enforcement for the Department, 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 Bell, 86 -628. 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 the "governmental body" with which you were associated while working with the Department must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. In this context, the Ethics Commission has Mr. Frank R. Booth December 8, 1987 Page 3 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 T1981). 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 Department through June 15, 1987 and then the Office from June 15, 1987 through your resignation on December 16, 1987. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Department and the Office during the above referenced time periods. 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 Department from the period December 16, 1987 through June 15, 1988 and the Office from December 16, 1987 through December 16, 1988. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department or the Office during the above referenced time periods. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. It is noted, 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 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. Mr. Frank R. Booth December 8, 1987 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 Department or the Office during the above referenced time periods), including, but not limited to, negotiations or renegotiations on contracts with the Department or the Office during the above referenced time periods; 2. Attempts to influence the Department or the Office during the above referenced time periods; 3. Participating in any matters before the Department or the Office during the above referenced time period 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 Department or the Office during the above referenced time periods 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 Department and the Office during the above referenced time periods, 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 Department and the Office during the above referenced time periods, is not prohibited as "representation." See Kotalik, 84 -007. You may, assist in the preparation of any documents presented to the Department and the Office during the above referenced time periods, so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department and the Office during the above referenced time periods. Once again, however, your activity in this respect should not be revealed to the the Department and the Office during the above referenced time periods. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Department and the Office during the above referenced time periods 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 Department and the Office during the above referenced time periods your representation of, or work for your new employer. Mr. Frank R. Booth December 8, 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. Lastly, the Commission has only addressed your inquiry under the Ethics Act; it has not considered the applicability of any other statute, code, ordinance, regulation or other code of conduct such as the State Adverse Interest Act or Governor's Code of Conduct. Additionally, it is noted 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 rking funderstanding for 65 P.S. §403(b). Conclusion: As a Deputy Secretary for Enforcement and District Office Administrator, 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 Department from December 16, 1987 through June 15, 1988 and the Office from the period December 16, 1987 through December 16, 1988. Lastly, this Commission has only addressed your inquiry under the Ethics Act; it has not considered the application of any other ordinance Codeother ofode of conduct such as the State Conduct. Further, should you terminate your employment or service, as outlined abov you frFinanciald Ethics lnterests Act requires foll wingyour termination of Statement o service. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any h enforcement proceeding initiated by the Commission, anvde o conduct in any other civil or criminal proceeding, providing 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. Mr. Frank R. Booth December 8, B Page 6 Finally, if you disagree with this Advice or if you have any reason to same, you may revue t. ;;`i' t'�1e full Commission r ie this Advice. A p erson sa y Any be appeal ma a made, formal in A personal appearance before the Commission w pursuant Opinion from the Commission will be issued. i n writ g, to the Commission within 15 days of service of this Advice p 51 Pa. Code 2.12. to Sincerely, U Vincent . Dopko General Counsel