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HomeMy WebLinkAbout87-653 Patterson4' STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 December 24, 1987 ADVICE OF COUNSEL 87 - 653 Mr. William L. Patterson P.O. Box 418 Mars, PA 16046 Re: Former Public Employee; Section 3(e), Department of Community Affairs Dear Mr. Patterson: This responds to your letter of December 9, 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 Community Affairs. Facts: In your letter you state that you have held your current position as Director of the Human Resources Bureau, hereinafter Bureau, in the Department of Community Affairs, hereinafter DCA, from October, 1986 through September, 1987. You further state that as of January 4, 1988, you will be assuming the position of Chief Clerk for Butler County, a local government administrative position, and ask what restrictions would be imposed by the Ethics Act upon you for the first year after you DCA. Based upon your job description /specification which is incorporated herein by reference, it appears that your duties and responsibilities consist of directing and coordinating the Human Resource Development Program for DCA which would include the Community Services Block Grant Program, the Weatherization Assistance Program, Employment and Community Conservation Program and the Neighborhood Assistance Tax Credit Program. You also are required to develop, interpret, and implement organizational and operational policies, methods and procedures as to the above listed programs. You are also required to maintain contact with governmental agency program officials, industrial, business and labor leaders and civic groups in resolving problems and in establishing and implementing specialized programs. You also serve as a technical advisor to governmental councils and committees which evaluate the projects and programs and proposals for new programs. Your duties also require speaking publicly to explain and encourage participation in the programs; you also meet with economically disadvantaged persons. Lastly, you prepare the Bureau's annual budget document and perform such other duties as are required relative to your position. Mr. William L. Patterson December 24, 1987 Page 2 Discussion: As a Bureau Director for DCA, 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 mi nimus on the interests of another person. Consequently, upon termination of this employment, you would 'Jecome a "former public employee" subject to Section 3(e) of the Ethics A< 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 it is necessary identify the "governmental body" with which you were associated while working with DCA. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. 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 DCA, 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 DCA. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public Mr. William L. Patterson December 24, 1987 Page 3 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. 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 any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by DCA; 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 DCA, 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. Mac. William L. Patterson December 24, 1987 Page 4 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 i n:iuence 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. Lastly, the question which you have posed has only been addressed under the State Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act has not been considered in this advice. 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 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 Bureau Director, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with DCA, 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. The advice has only been issued under the Ethics Act; the applicability of any other statute, code, ordinance, regulation, or other code of conduct other than the Ethics Act has not been considered in this advice. 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. Mr. William I_ Patterson December 24, 1987 Page 5 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 w i l l 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, byt Vincent Dopko, General Counsel