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HomeMy WebLinkAbout88-548 RallRaymond F. Rall, Jr., CPA 1960 -A Fry Loop Avenue Carlisle, PA 17013 Dear Rall: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 13, 1988 ADVICE OF COUNSEL 88 -548 Re: Former Public Employee; Section 3(e), Audit Specialist II, Auditor General's Office This responds to your letter of February 24, 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 Auditor General. Facts: In your advice request you state that you have terminated your employment as Regional Manager for the Southeast Region in the Bureau of State -Aided Institutional Audits, hereinafter Bureau, with the Department of the Auditor General and have now accepted a position with Zelenkofske, Axelrod & Company, LTD., a public accounting firm. You further state that the Bureau performs audits of hospitals and county nursing facilities so as to determine Medical Assistance Program costs, the audits of which are forwarded to the Department of Public Welfare for settlement. You then state that in your new position you expect to be dealing with nursing home providers, both private non - profit and for profit. In your job description specification which is incorporated herein by reference, it is noted that your duties and responsibilities consist of professional auditing work relative to the review, analysis and development of auditing procedures and and the performance and supervison of audits. Further, you would be required to analyze and evaluate auditing procedures and develop new and revised procedures including the writing of instructions for performance. In addition, you may exercise supervision over field auditors and audit specialist l's during the implementation of revised or newly developed audit programs. You conclude by requesting advice from the Ethics Commission as to the limitations which would be imposed upon you under the Ethics Act regarding your dealings with various agencies. Raymond F . Ral 1 , Jr. CPA April 13, 1988 Page 2 Discussion: As a Audit Specialist I I for the Department of Auditor 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. 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 it is necessary to identify the "governmental body" with which you were associated while working with the Department of Auditor General. 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 (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 of Auditor General, 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 of Auditor General. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts Raymond F. Rall, Jr., CPA April 13, 1988 Page 3 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, 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 Bureau), including, but not limited to, negotiations or renegotiations on contracts with the Bureau; 2. Attempts to influence the Bureau; 3. Partic ;.pating in any matters before the Bureau over which you had supervision, direct involvement, or responsibility while employed by the Department of Auditor General; 4. Lobbying, that is representing the interests of any person or employer before the Bureau 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 Bureau, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave the Department of Auditor General, 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, Opinion 84 -007. Raymond F. Ral l , Jr., CPA April 13, 1988 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, 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 Bureau your representation of, or work for your new employer. 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. The propriety of the proposed conduct has only been addressed 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 that they do not involve an interpretation of the Ethics Act. Finally, 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 Audit Specialist II, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department -of Auditor General, 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. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act. Further, should you termi nate 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. Raymond F. Ral l , Jr. CPA April 13, 1988 Page 5 Pursuant to Section 7(9)(ii), this Advice is a complete defe enforcement proceeding initiated by the Commission, and evidence conduct in any other civil or criminal proceeding, providing the disclosed truthfully al 1 the material facts and committed the act of in reliance on the Advice given. This letter is a public record and will be made available as Finally, if you disagree with this Advice or if you have any challenge same, you may request that the full Commission review t A personal appearance before the Commission will be scheduled and Opinion from the Commission will be issued. Any such appeal must writing, to the Commission within 15 days of service of this Advi to 51 Pa. Code 2.12. cerely, incent . Dopko General Counsel nse in any of good faith requestor has s complained such. reason to his Advice. a formal be made, in ce pursuant