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HomeMy WebLinkAbout88-509 ThomasMr. Russell W. Thomas Thomas Group Associates, Inc. Rt. 191, P.O. Box 410 Hamlin, PA 18427 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 9, 1988 ADVICE OF COUNSEL 88 - 509 Re: Former Public Employee; Section 3(e), Special Agent, Bureau of Criminal Investigation, Office of Attorney General Dear Mr. Thomas: This responds to your letter of January 6, 1988, 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 Office of Attorney General. Facts: In your advice request you state that you served as a Special Agent with the Bureau of Criminal Investigations (BCI) in the Office of Attorney General, hereinafter Office, from September, 1979 until your retirement on January 6, 1988. You state that during that time you were neither in a supervisory or policymaking position and did not engage in the purchasing or contracting for the Office or for BCI. You then question as to whether there would be a conflict of interest if you were to contractually engage as either a consultant or a private investigator either in the capacity as an employee of a private investigative licensed agency or on your own when you would be involved in matters that you worked when you were a special investigator in the Office. You state that you would not attempt to engage in the defense of individuals that you had previously investigated or prosecuted. However, you do note two instances that you previously worked as special agent on which you now will be working as a private investigator. You indicate that the first situation involves a case of alleged thefts from the accounts of a recreational community non - profit corporation relative to a non - compensated member of the Board of Directors who was arrested and entered into an agreement plea with the Commonwealth. In that case you state that the Board of Directors is considering retaining you as a consultant to aid the insurance company, the accountants and the attorneys in a civil suit which seeks the recovery of the monies. The second case involves a situation where a managerial person for a profit corporation allegedly embezzled funds. You state that that individual and several others may also enter into a plea agreement and, if so, the major principal would have to be debriefed through a team effort involving the accountants of the corporation and private Mr. Russell W. Thomas February 9, 1988 Page 2 attorneys. You state that the corporation desires to retain you to assist the attorneys and the accountants relative to civil proceedings which would seek the recovery of the monies from these individuals. You then conclude by requesting advice as to whether your activities would transgress the provisions of the State Ethics Act. Discussion: As a Special Agent for Office of Attorney General, 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 Conway Advice, 87 -625. 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 Office of Attorney General 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 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 Opinion, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 T1981). The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the BCI. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from Office of Attorney General. 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 Mr. Russell W. Thomas February 9, 1988 Page 3 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 Opinion, 83 -014; Zwikl Opinion, 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 BCI), including, but not limited to, negotiations or renegotiations on contracts with the BCI; 2. Attempts to influence the BCI; 3. Participating in any matters before the BCI over which you had supervision, direct involvement, or responsibility while employed by Office of Attorney General; 4. Lobbying, that is representing the interests of any person or employer before the BCI in relation to legislation, regulations, etc. See Russell Opinion, 80 -048 and Seltzer Opinion, 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 BCI, constitutes an attempt to influence your former governmental body. See Kilareski 0 inion, 80 -054. Therefore, within the first year after you leave t e O ffice, 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 BCI, is not prohibited as "representation." See Kotalik Opinion, 84 -007. Mr. Russell W. Thomas February 9, 1988 Page 4 You may, assist i n the preparation of any documents presented to the BCI so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the BCI. Once again, however, your activity in this respect should not be revealed to the BCI. 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 BCI to secure information which is available to the general public. See Cutt Opinion, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the BCI 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 Opinion, 80 -056 and Beaser Advice, 81 -538. Given these duties and responsibilities it is necessary to review the requirements of Section (3) and 3(b) of the State Ethics Act. 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. 65 P.S. §403(a) and (b). You must be cognizant of these provisions and adhere to the requirements so as to conform your conduct with the requirement to the Ethics Act. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct has not been addressed. Conclusion: As a Special Agent for the Office, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Office, you would became 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 BCI. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. 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. Russell W. Thomas February 9, 1988 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 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 ncerely, Vincent J. Dopko General Counsel