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HomeMy WebLinkAbout94-504 LandauSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 1 1470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL January 12, 1994 94-504 Deborah Landau 611 Showers Street Harrisburg, PA 17104 Re: Former Public Employee; PennDOT; Executive Secretary I; Not Public Employee under Ethics Law; Restrictions and Prohibitions; Section 3(g). Dear Ms. Landau: This responds to your letter of December 7, 1993, 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 an Executive Secretary I following termination of service with the Commonwealth of Pennsylvania, Department of Transportation. Facts: Currently, you are an Executive Secretary in the Executive Office of the Pennsylvania Department of Transportation (PennDOT). you have started your own business, "Independent Word Processing ", and will be resigning from your Commonwealth employment within a few months. In your business, you will provide word processing, dictation and fax services to law firms, private industries and others in need of such services. You hope to contract with the Office of Chief Counsel for PennDOT as well as other state agencies. You refer to a telephone conference with Assistant Counsel wherein Section 3(g) and various Advices of Counsel and Opinions of the Commission relating to that section were discussed and you state that you were told you may have to wait a year to contract with PennDOT, but possibly could contract with other agencies sooner. Based upon the above, you request an advisory from the State Ethics Commission regarding your proposed conduct. Discussion: Initially, it must be noted that while the Commission staff provides a public service by informing callers of various provisions of the Ethics Law, advisories are not issued by Deborah Landau January 12, 1994 Page 2 telephone. The primary question to be answered is whether you are to be considered a "public employee" as that term is defined in the State Ethics Law: 65 P.S. 5402. Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non - ministerial nature with regard to: (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. We note that, for the sake of this response, we are relying primarily on your job description and classification specification which have been provided. Based upon the definition of "public employee" and in light of the job description and the classification specifications for the position, as well as your statements set forth in your request for advice, it must be concluded that you are not to be considered a "public employee" as that term is defined in the State Ethics Law. This conclusion is based upon an objective review of this information from which it appears that you are not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the definition listed above for the term "public employee." Since you are not a public employee as that term is defined Deborah Landau January 12, 1994 Page 3 under the Ethics Law, the proposed activity would not be restricted by the Ethics Law subject to the qualification that Section 3(b) and 3(c) apply to everyone. Section 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value 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. Since you are not a public employee, the provisions of Section 3(g) would not be applicable. Section 3(g) states as follows: Section 3. Restricted activities (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. 65 P.S. 5403(g). Since Section 3(g) does not apply to you, you may, consistent with the Ethics Law, contract with all state agencies, including the office of the Chief Counsel for PennDOT, immediately upon termination of employment with PennDOT. 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: In the position of an Executive Secretary I with the Pennsylvania Department of Transportation, you are not to be considered a public employee as defined in the State Ethics Law. Accordingly, you would not be subject to the State Ethics Law except for Sections 3(b) and 3(c) of the Ethics Law which are applicable to everyone. You may contract with state agencies, including PennDOT, upon termination of your employment. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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 Deborah Landau January 12, 1994 Page 4 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Vincent J . D ko Chief Counsel