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HomeMy WebLinkAbout88-585 GoodJulia A. Good R.D. #2, Box 113AC Hummelstown, PA 17036 Dear Ms. Good: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 14, 1988 88 -585 Re: Former Public Employee; Section 3(e), State Treasury Department, Director of Purchasing and Maintenance This responds to your letter of May 19, 1988, in which you requested advice from the State Ethics Commission. Issue: You a;k whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Office of State Treasury. Facts: You state that you are currently the Director of Purchasing and Maintenance in the Bureau of Purchasing and Maintenance, hereinafter Bureau, in the office of the State Treasury, hereinafter Treasury. After noting that you will resign on June 3, 1988, you state that beginning June 13th you will work at Novinger's Inc. as a project manager wherein your duties will consist of coordinating renovation projects, furniture installations and other miscellaneous projects. You then note that you will be working on behalf of both private corporation projects and state projects although you will not be in a position to do any actual selling to the State. In your job description specification which is incorporated here and by reference, it is noted that your duties and responsibilities consist of the following: responsibility for the entire Bureau, analysis and preparation of the budget; purchasing all materials, supplies, services and Ms. Julia A. Good June 14, 1988 Page 2 periodicals; implementing and main the telephone inventory and activities; responsibility for the telecommunication activity; gathering of facts and information relative to purchasing maintenance and other areas; responsibility for the upkeep of the auto fleet; providing assistance in closing the books; coordinating with contractors and G.S. in office improvements, maintenance and renovations; processing invoices for payment; coordinating as to any special assignment; service on various committees; responsibility for recommendations as to new or proposed procedures; coordination with G.S. or vendors for purchase complaints; recommendations on personnel activity to the Administrative office and performing such other duties as are required in your position. As a Director of Purchasing and Maintenance for State Treasury, 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. 5402; 51 Pa. Code 51.1. 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. 5403. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with the Treasury. 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 Ms. Julia A. Good June 14, 1988 Page 3 which an individual may be deemed ',:o hai,e been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, sipervision, or control. See Ewing, Opinion 79 -010. See also Kury v. Commonwealth of Pennsylvania, State Ethics Commis"ion, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, yo»r jurisdiction, responsibility, influence and cont):ol 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 Treasury, 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 amployment in which you may engage, following your departure from the Treasury. 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 •r 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 the bthics Commission has promulgated regulations to define "re- presen ^n" 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 employee. 51 Pa. Code S1.1. Ms. Julia A. : June 14, 1988 Page 4 The Commission, in its opin_ 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 the Treasury; 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 Treasury, 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). 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. Ms. Julia A. Good June 14, 1988 Page 5 Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating c)r renegotiating a contract, your activities would not be prc 3bited by the Ethics Act. See Dalton, Opinion 80 -056 and Beaser, 'ice 81 -538. Section 3(b) of the Ethics Act provides: (b) No person shall offer or give to a public official or public employee or candidate for public office or a 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 employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act :must be referenced in c to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official c employee must observe, a public official or employee must ne7_th, offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. Tt is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been aedressed 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. Conclusion: As a Director of Purchasing and Maintenance, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Treasury, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, Ms. Julia L. June 14, 1988 Page 6 your conduct should conform to the requ.iremerts of the Ethics Aci.. as outlined above. Your governmental body for the purpose of the one year representation restriction is the Bureau. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. This letter is a public record and will be made available of Finally, if you disagree with this Advice or if you have reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before thy. Commission will be scheduled and a former Opinion from the Commission will be issued. Any such appeal rust Ile riadc, in writing, to the .Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent . Dopko, General Counsel