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HomeMy WebLinkAbout91-575 SimmonsDear Mr. Simmons: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 9, 1991 91 -575 Mr. Jack Simmons 902 Charles Street Mechanicsburg, PA 17055 Re: Executive -level State Employee; Former Public Employee; Section 3(g); Buyer Supervisor; Department of General Services. This responds to your letter of August 6, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public. Official and Employee Ethics Law presents any restrictions upon employment of a Buyer Supervisor following termination of service with the Department of General Services. Facts: As a Buyer Supervisor with the Department of General Services ( "DGS ") intending to resign your current position effective August 30, 1991, you seek the advice of the State Ethics Commission with regard to restrictions under the Public Official and Employee Ethics Law pertaining to you and your prospective employment. In your current position as Buyer Supervisor of Buying Unit A at DGS, you report directly to the Director of the Bureau of Purchases. Your main responsibility is the management of five buyers and the purchase of the commodities assigned to Buying Unit A. Your duties are supervisory and technical in nature as they relate to the acquisition of commodities for the Commonwealth of Pennsylvania. You characterize your position as that of a mid -level manager, and you state that you have no authority over and above the buyers and associated commodities assigned to Buying Unit A. Your position is not Senior Management and you do not set or make policy. However, you have participated as an advisor as a function of your position. Upon resignation from your current position, you will be a partner in a newly formed corporation called Government Marketing Services Inc. ( "GMSI "). Specifically, your position will be as Operations Partner for GMSI, which *Ili not require direct sales to Commonwealth personnel but will require interaction with Mr. Jack Simmons September 9, 1991 Page 2 Commonwealth executives and agency personnel on behalf of your clients. You state that it is your understanding that you are forbidden to directly solicit business from your agency, DGS, for one year from your retirement date. You request an advisory opinion from this Commission that would detail any limitations for you in your new position with regard to soliciting and doing business with the Commonwealth of Pennsylvania. Copies of your job description, job specification, and organizational chart have been obtained from DGS, all of which documents are incorporated herein by reference. The incorporated documents state that you receive supervision from the Chief of the Buying Division, and that you operate with considerable independence and freedom. You apply independent judgement and interpret policy and uses procedures based upon knowledge and experience. You serve as a Supervisor over subordinate buyers and perform purchasing functions for supplies, materials or equipment. Work includes the assigned responsibility for purchasing a variety of specialized or highly technical commodities for use by any state agency. You are responsible for processing contracts and bid proposals, which includes evaluating the bids which are received and making awards after insuring that the submissions are complete. You coordinate the work of your section with officials of using agencies in the proper preparation of documents and the resolution of problems such as purchase and repurchase actions, mistakes on purchasing documentation or budgeting, or rejected materials. An employee in your position maintains contact with vendors and manufacturers to keep current on supply sources, prices, marketing practices, design, and capabilities of commodities. Further examples of your work include supervisory duties such as planning and organizing work, assigning work, determining work flow, approving leave, recommending employee selection, and preparing employee performance evaluation reports. Your work includes numerous other duties and responsibilities as set forth in the incorporated documents. Discussion: As a Buyer Supervisor for DGS, you are to be considered a "public employee" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to, take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, regulating, auditing or other activities where Mr. Jack Simmons September 9, 1991 Page 3 the economic impact is greater than de minimus on the interests of another person. Additionally, you are an "executive -level state employee" as that term is defined under the Ethics Law in light of the fact that your discretionary powers and /or your job function could affect or influence the outcome of a state agency's decision in relation to a private corporation or business. Consequently, upon termination of public service, you would become a "former public employee" subject to Section 3(g) of the Public Official and Employee Ethics Law and a former executive - level state employee subject to the provisions of Section 3(i) of the Ethics Law. Sections 3(g) and 3(i) of the Ethics Law provide that: Section 3. Restricted activities. 65 P.S. §403(g). 65 P.S. §403(i). (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. (i) 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 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 or a promise of a grant or loan of money from the Commonwealth to the business or corporption . recruited or induced to expand. Mr. Jack Simmons September 9, 1991 Page 4 This advice shall first consider the restrictions of Section 3(g), followed by the limitations set forth in Section 3(i). Initially, to answer your request the governmental body with which you were associated while working with DGS must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would clearly include, but may not be limited to DGS. The extension of your "former governmental body" to other agencies will be discussed below. In any event, it is clear that your former governmental body would include DGS without any limitation to the Bureau of Purchases. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission. - Thus, in Sirolli, Opinion 90 -006, the Commission found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted -to- that -- particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service with DGS, Section 3(g) of the Ethics Law would apply and Mr. Jack Simmons September 9, 1991 Page 5 restrict representation of persons or new employers vis -a -vis your former governmental body. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you were associated would clearly include DGS, including but not limited to the Bureau of Purchases. However, as noted above, the governmental body with which you are associated may extend beyond DGS because your job description and job specification indicate that as a Buyer Supervisor, you had input and /or exerted influence regarding the decisions of other state agencies in purchasing matters. Specifically, your job description includes among your "Major Duties" the assigned responsibility for purchasing a variety of specialized or highly technical commodities for use by anv state agency. You contact agency officials and vendors to resolve problems such as surcharges and repurchase actions on rejected materials. Your job specification includes as examples of the work of a person in your position, contacting using agency officials for information, and coordinating the work of your section with the officials of using agencies in the proper preparation of documents and the resolution of problems such as purchase and repurchase actions, mistakes on purchasing documentation or budgeting, or rejected materials. (See, Nixon, Opinion 89 -006 at 5, where the Commission considered restrictions placed upon another individual leaving the Mr. Jack Simmons September 9, 1991 Page 6 employment of DGS, and discussed this potential extension of the governmental body beyond DGS to other Commonwealth agencies.) Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 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 or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. The Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental Mr. Jack Simmons September 9, 1991 Page 7 body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to your former governmental body so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before your former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of your former governmental body to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. Thus, to the extent that you have characterized your prospective position as Operations Partner for GMSI as requiring interaction with Commonwealth executives and agency personnel on behalf of your clients, such conduct would be prohibited with respect to your former governmental body, which as indicated above, clearly includes DGS but may extend to other Commonwealth agencies. As discussed above, your status as a partner in the corporation is not prohibited, nor ate -you prohibited from having a role in the corporation's work of soliciting and doing state business, provided that you personally do not engage in the prohibited conduct of "representing" any person - including but Mr. Jack Simmons September 9, 1991 Page 8 not limited to your new company - before your former governmental body. In your capacity as an executive -level state employee, you are also subject to the restrictions of Section 3(i) quoted above. As noted above, Section 3(i) 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 by, receive compensation from or act in a representative capacity for a business or corporation that the former executive -level state employee participated in recruiting to initiate or expand operations in the Commonwealth. It should be further noted that the above restriction is limited to the situation where the recruitment is accomplished by a grant or loan for money or promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to initiate or expand operations. The intendment of the above provision of the Ethics Law is to prohibit an executive -level state employee from trading upon his ability to influence the disposition of public funds to private businesses or corporations by securing future employment from entities receiving such funds. Thus, if you were engaged in activities as outlined above, you would be subject to the two year employment restriction of Section 3(i) of the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; 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 Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As a Buyer Supervisor for the Department of General Services, ( "DGS "), you are to be considered a "public employee" and an "executive -level state employee" as those terms are defined in the Ethics Law. Upon termination of service with DGS, Mr. Jack Simmons September 9, 1991 Page 9 you would become a "former public employee" and a former executive -level state employee subject to Sections 3(g) and 3(i) of the Ethics Law. The former governmental body clearly includes DGS but may extend to other Commonwealth agencies. Therefore, you may need to seek the additional advice of this Commission as to whether the restrictions as to representation outlined above would restrict your future activities in relation to such other Commonwealth agencies. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, should service be terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), 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 as 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code §2.12. S'ncerely, Vincent J. Dopko, Chief Counsel