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HomeMy WebLinkAbout88-657 TellefsenMr. F. Roger Tellefsen 7906 Carroll Avenue Takoma Park, PA 20912 Dear Mr. Tellefsen: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL December 5, 1988 88 -657 Re: Former Public Employee, Executive - level State Employee, Section 3(e), Section 3(g), Acting Secretary of Commerce, Director of Office of Technology Development This responds to your letter of October 17, 1988, in which you requested advice from the State Ethics Commission. Issue: You ask whether the State Ethics Act presents any restrictions or prohibition upon your potential employment following your termination of service with the Department of Commerce. Facts: You state that as a former Commonwealth employee you intend to establish a management and technology development consulting firm that would do business in Pennsylvania. You indicate that your potential clients would be start -up firms in high technology fields and that you may have occasion to seek services from state programs which are administered by your former governmental body, the Department of Commerce, hereinafter Department. After noting that you terminated employment with the Department on July 13, 1987, you state that you accepted a position with the University of Maryland and during that 15 month period had no contact with the Department. During your employment with the Department you state that you served as Acting Secretary of Commerce from January 20, 1987 to March 31, 1987 and thereafter from May 1, 1987 until your departure on July 13 you served as director of the Office of Technology Development. You advise that you were not actively involved in recruiting individual firms to locate in Pennsylvania and that funding decisions were made by the Ben Franklin Partnership Board on behalf of which you served in a staff role. In addition, you state that when you were serving as Acting Secretary, active recruiting efforts were made as to all large firms and that you would be, of course, bound by the provisions of Section 3(g) of Mr. F. Roger Tellefsen December 5, 1988 Page 2 the Ethics Act. You conclude by seeking advice as to the applications of Sections 3(e) and 3(g) of the Ethics Act and as it specifically relates to any contacts with the Department and grantee organizations such as the Ben Franklin Partnership Advance Technology Center. Discussion: As director of the Office of Technology Development, you were a public employee and as acting secretary of Commerce, you were an executive -level state employee as those terms are defined under the Ethics Act. 65 P.S. §402. As such, you are is subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. Section 3(e) of the Ethics Act provides: 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. Section 3(e), quoted above, imposes a one -year representation restriction upon former public officials and public employees. Since you terminated your state service on July 13, 1987 and since you indicate that you had no contact with the Department within the one year period after you left service, the one -year restriction period in Section 3(e) expired on July 13, 1988 and, therefore, would have no further application to your activities. Section 3(g) of the Ethics Act provides: Section 3. Restricted Activities (g) No former executive -level State employee may for a period of two years from the time that he terminates his State Employment be employed by receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or Mr. F. Roger Tellefsen December 5, 1988 Page 3 facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. §403(g). As noted above, Section 3(g) sets forth a specific prohibition that a former executive level state employee for a period of two years after termination of state employment may not be employed or receive any compensation or may act in a representative capacity for a business or corporation that the former executive level state employee participated in recruiting. It should be further noted that the above restriction specifically applies to the situation where the recruitment is accomplished by a grant or loan or money or promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to expand. The intendment of the above provision of the Ethics Act is to prohibit an executive level state employee from obtaining employment or acting as a representative for various businesses or corporations that were recruited or induced to expand. Osborne, Advice 88 -589. Thus, Section 3(g) of the Ethics Act would restrict your employment for a two year period as to any business or corporation if the recruitment or inducement was accomplished by a grant, loan, money or promise of a grant, loan of money from the Commonwealth to the business or corporation which was recruited or induced to expand. Since you served as Acting Secretary, Section 3(g) of the Ethics Act would be applicable and would preclude your employment provided the above qualifying condition of Section 3(g) applies. The fact that you served as director of the Office of Technology Development after your period of service as Acting Secretary does not negate the fact that you did actively recruit large firms when you served as Acting Secretary. As to the question of whether 3(g) would bar your employment as to grantee organizations, the resolution of that question turns upon whether, during your service as Acting Secretary, any of these organizations were recruited to Pennsylvania or were induced to an expansion via a grant or loan or money or a promise of a grant or loan or money or the promise thereof from the Commonwealth to the entity recruited or induced to expand. If the foregoing condition of Section 3(g) is applicable to any of the grantee organizations, than Section 3(g) would restrict your employment or representation as to those organizations for the period of two years after the termination of your state service. Mr. F. Roger Tellefsen December 5, 1988 Page 4 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 member 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). Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It 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 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. Conclusion: As former director of the Office of Technology Development in the Department of Commerce, you are a former public employee subject to the restrictions of Section 3(e) of the Ethics Act; however, since you did not engage in any representation with your former governmental body for the first year after you terminated service, the one year restriction has expired and Section 3(e) would not now restrict such activity. As former Acting Secretary of Commerce, you were an executive level employee and would be restricted under Section 3(g) of the Ethics Act in employment for a two year period as to any business or corporation wherein the recruitment or inducement was accomplished by grant, loan, money or promise of a grant or loan of money from the Commonwealth to the entity recruited or induced to expand. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Mr. F. Roger Tellefsen December 5, 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. Sincerely, 074 Vincent J. Dopko, General Counsel