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HomeMy WebLinkAbout97-593 ClaroniSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 17, 1997 Karyl Hennigan Claroni 1760 Powderhorn Road Middletown, PA 17057 97 -593 Re: Former Public Official /Public Employee; Section 3(g); Department of Conservation and Natural Resources; Chief of Information Systems; Parks Reservation and Revenue System; Pennsylvania Industries for the Blind and Handicapped; Abilitech. Dear Ms. Claroni: This responds to your letters of May 28, 1997 and June 13, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a former Chief of Information Systems following termination of service with the Department of Conservation and Natural Resources (DCNR), and specifically as to a Parks Reservation and Revenue System project for which she served as Project Coordinator in her former position with DCNR, which project is under contract for implementation by her new employer. Facts: On May 9, 1997, you resigned from your position as Chief of Information Systems for the Department of Conservation and Natural Resources (DCNR). On May 12, 1997, you commenced employment with the Pennsylvania Industries for the Blind and Handicapped (PIBH). While at DCNR, in addition to other duties, you were the Project Coordinator for an initiative to develop a Parks Reservation and Revenue System (PRRS) for the Bureau of State Parks. As the overall Project Coordinator, you served in an advisory role to the DCNR Project Manager, advising on matters related to information systems development and associated technology as it related to the implementation of the system. You developed the project plan and had some control over responsibilities assigned to the various contractors and workgroups within DCNR. PIBH exercised "right of first refusal" under the State Use Act to accept the contract for implementation of the PRRS. On April 12, 1997, during your involvement with the PRRS project, you were offered employment by PIBH to work on another, Claroni, 97 -593 July 17, 1997 Page 2 unrelated contract. You accepted that offer and began employment with PIBH on May 12, 1997. You state that prior to receiving the job offer on April 1, 1997, you had no knowledge of any job opportunity for you with PIBH. You further state that you in no way used your public position to influence a job offer or other opportunity for employment with PIBH. You state that the subcontractor that has assumed responsibility for Project Management of the PRRS is " Abilitech." Abilitech is a subsidiary of Elwyn Industries, which is a member agency of PIBH. PIBH, Elwyn Industries, and Abilitech are non- profit agencies whose mission is the enhancement of disabled individuals. James Karns of Abilitech is initiating contact with you regarding your knowledge and expertise as the former Project Coordinator for PRRS. You request an advisory from this Commission as to your obligations under the Ethics Law with regard to the following: 1. responding to requests for information from DCNR relative to historic activities and decisions for which you had some influence or input; 2. providing assistance to the subcontractor (Abilitech) who, in your absence, has assumed responsibility for Project Management of the PRRS; and 3. contacting former DCNR employees on a personal basis to discuss non -work related topics. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(1 1) of the Ethics Law, 65 P.S. §§407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §§407(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. It is further initially noted that pursuant to Sections 7(10) and (11) of the Ethics Law, an advisory may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice but any person may then submit a signed and sworn complaint which will be investigated by the Commission if there are allegations of Ethics Law violations by a person who is subject to the Ethics Law. Consequently, although you state that you did not use your public position to get the job with PIBH, this Advice may not, and does not, address the propriety of your past conduct under Section 3(a) of the Ethics Law which pertains to conflicts of interest. Based upon the facts which you have submitted, it is clear that in your former capacity as the Chief of Information Systems for DCNR, you would be considered a public official /public employee subject to the Public Official and Employe Ethics Law ( "Ethics Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code §11.1. Claroni, 97 -593 July 17, 1997 Page 3 Consequently, upon termination of public service, you became a "former" public official /public employee subject to Section 3(g) of the Public Official and Employe Ethics Law. While Section 3(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": 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 aovernmental body with which he has been associated for one year after he leaves that body. 65 P.S. §403(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Law 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. 65 P.S. §402. The term "Person" is very broadly defined. _ It includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. Claroni, 97 -593 July 17, 1997 Page 4 The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by 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; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 3(g) also generally prohibits the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95- 011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the public official /public employee may not be identified on documents submitted to the former governmental body. The public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Law would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Section 3(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service would be DCNR in its entirety. Therefore, for the first year after termination of your service with DCNR, Section 3(g) of the Ethics Law would apply and would restrict "representation" of "persons" before DCNR. Turning to your specific inquiries, you first ask whether you may respond to requests for information from DCNR relative to historic activities and decisions for which you had some influence or input. In response to this particular inquiry, you are advised that where the requests for information are initiated by DCNR, and relate to historic activities and decisions for which you had some influence or input while you were with DCNR, i.e., DCNR is seeking information as to work that you did in the past Claroni, 97 -593 July 17, 1997 Page 5 while you were with DCNR, such contacts would not involve representation of your new employer before DCNR and therefore would not be prohibited by Section 3(g). Next, you ask whether you may provide assistance to the subcontractor, Abilitech, which, in your absence, has resumed responsibility for project management of the PRRS. You are advised that since Abilitech is a subsidiary of Elwyn Industries, a member agency of PIBH, such assistance would be permissible under Section 3(g). Assisting Abilitech would not constitute prohibited representation before your former governmental body, because Abilitech is not part of DCNR but rather is related to your new employer. Your third specific inquiry is whether you may contact former DCNR employees on a personal basis to discuss non -work related topics. You are advised that contacts which are social rather than of a representational nature would not be prohibited by Section 3(g) in that such contacts by definition would not involve representation before your former governmental body. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that 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 anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been 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: In the former capacity as the Chief of Information Systems for the Department of Conservation and Natural Resources (DCNR), you would be considered a public official /public employee as defined in the Ethics Law. Upon termination of service with DCNR, you became a former ' public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is DCNR in its entirety. 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 would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 7(1 1), 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. Claroni, 97 -593 July 17, 1997 Page 6 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 thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(17). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. ncerely, ih cent , . Dopko Chief Counsel