HomeMy WebLinkAbout98-554 BarnerGail Barner
471 Frog Hollow Rd.
Harrisburg, PA 17112
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
May 11, 1998
98-554
Re: Former Public; Section 3(g); Computer Systems Analyst Supervisor; Department
of Agriculture.
Dear Ms. Barner:
This responds to your letter of April 10, 1998 by which you requested advice
from the State Ethics Commission.
Issue: Whether the Public Official and Employe Ethics Law presents any
restrictions upon employment of a computer systems analyst supervisor following
termination of service with the Commonwealth of Pennsylvania, Department of
Agriculture. -
Facts: On March 27, 1998, you retired from Commonwealth employment. Prior
to retirement, you were a Computer Systems Analyst Supervisor with the Department
of Agriculture. You have submitted a copy of your former job description and job
classification specifications, which documents are incorporated herein.
You are currently employed by Solution Technologies, Inc., which wants to
place you in your old office. It is your understanding that the services would be
performed pursuant to a contract between your new employer and the Office of
Administration, not the Department of Agriculture itself.
You ask for an advisory from the State Ethics Commission as to any restrictions
under the Ethics Law which would apply to the proposed arrangement.
Discussion: In your former capacity as a Computer Systems Analyst Supervisor
for the Commonwealth of Pennsylvania, Department of Agriculture, you would be
considered a "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 § 1 1.1. This conclusion is based upon the job description and job
classification specifications, which when reviewed on an objective basis, indicate
clearly that the power exists to take or recommend official action of a non - ministerial
nature with respect to one or more of the following: contracting; procurement;
planning; inspecting; administering or monitoring grants; leasing; regulating; auditing;
or other activities where the economic impact is greater than de minimis on the
interests of another person.
Barner, 98 -554
May 11, 1998
Page 2
Consequently, upon termination of public service, you became a "former 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 governmental 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:
65 P.S. §402.
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.
The term "Person" is very broadly defined. It includes a business. It also
includes the former public employee himself, Confidential Opinion 93 -005, as well as
a new governmental employer. Ledebur, Opinion 95 -007.
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 /public 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.
Barner, 98 -554
May 11, 1998
Page 3
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 -01 1.
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 /public 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 have been associated upon termination
of public service is the Department of Agriculture in its entirety. Therefore, for the first
year after termination of your service with the Department of Agriculture, Section 3(g)
of the Ethics Law would apply and restrict "representation" of "persons" before the
Department of Agriculture.
With regard to your specific inquiry, regarding performing services at the
Department of Agriculture pursuant to a contract between your new employer and the
Office of Administration, you are advised as follows.
In Ziegler, Opinion No. 98 -001, a former mining engineer for the Department of
Environmental Protection (DEP) had left Commonwealth employment and had accepted
employment in the private sector as a computer consultant. The new employer had a
contract with DEP and sought to place the former public employee at the DEP office
to provide services pursuant to that contract. In concluding that the former public
employee could not perform services under the proposed arrangement without
transgressing Section 3(g), the State Ethics Commission focused upon the physical
presence of the former public employee at the office of the former governmental body:
Since working on Transfer Technology's team at DEP would require you
to be physically present at DEP's Harrisburg Central Office, it would be
impossible for you to perform the functions of that position without
transgressing Section 3(g). Working on behalf of Transfer Technology at
DEP's Harrisburg Central Office would necessarily result in prohibited
Barner, 98 -554
May 11, 1998
Page 4
representation of your new employer, Transfer Technology, before your
former governmental body, DEP.
Ziegler, Opinion No. 98 -001 at 6.
Similarly, under the circumstances which you have presented, you would be
performing services for a private employer in the very office where you previously
worked as a public employee. As in Mr. Ziegler's case, it would be impossible for you
to perform the proposed services at your former governmental body (the Department
of Agriculture) on behalf of a new, private employer (Solution Technologies, Inc.)
without transgressing Section 3(g). Working on behalf of Solution Technologies, Inc.
at the Department of Agriculture would necessarily result in prohibited representation
of your new employer before your former governmental body.
The fact that the contract is between your new employer and the Office of
Administration does not alter this conclusion. The services are being provided to the
Department of Agriculture. Therefore, the Department of Agriculture would obviously
have at least some involvment as to your new employer's performance under the
contract, and particularly any disputes regarding same.
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 /public employee and no
public official /public employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment of the public
official /public 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 Law has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: In the former capacity as a Computer Systems Analyst Supervisor
for the Commonwealth of Pennsylvania, Department of Agriculture, you would be
considered a "public employee" as defined in the Ethics Law. Upon termination of
service with the Department of Agriculture, you would become a "former public
employee" subject to Section 3(g) of the Ethics Law. The former governmental body
is the Department of Agriculture. 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(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.
This letter is a public record and will be made available as such.
Barner, 98 -554
May 11, 1998
Page 5
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(h I. 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. -
spt rely, i)ort
Vincent J. Dopko
Chief Counsel