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HomeMy WebLinkAbout82-011 SchoenerII. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 23, 1982 OPINION OF THE COMMISSION Kenneth Schoener 27 E. Main Street Thompson Town, PA 17094 RE: Former Public Official, Contract, Representation Dear Mr. Schoener: I. Issue: 82 -011 You requested advice as to whether you may enter into a service purchase contract with the Department of Environmental Resources within the first year after you have left that department. You resigned from the Department of Environmental Resources (DER) by letter of January 27, 1982 to be effective June 30, 1982. While with DER for the last two years you worked within the Office of. the Deputy Secretary for Planning, (ODSP). Sometime early in June prior to your departure from DER you were approached by personnel within the Division of Water Quality (DWQ) in DER to determine whether you would be interested in acting as a consultant to the Department on technical matters concerning the Chesapeake Bay Program Study. You indicated that you would be interested and available to begin work on July 6, 1982. The comptroller for DER received and approved a request processing a "sole source" service purchase contract for you to act as consultant to the Bureau of Water Quality for the Chesapeake Bay Program Study. It is noted that the sole source justification which is made part of this record, indicates that you have outstanding qualifications in the general area as a licensed Pennsylvania Professional Engineer who had been employed with DER for approximately 20 years. However, this justification does not indicate that the Chesapeake Bay Program Study hereinafter (CBP) was part of your obligations while employed with the DER. You had extensive experience in areas relating to the Delaware - Potomac River Basins and Ohio -Lake Erie Basins and these activities and responsibilities were similar to those you would be requested to assume in relation to the CBP Study. Further, the sole source justification memorandum indicates the important nature of the CBP Study to the State in general. Kenneth Schoener December 23, 1982 Page 2 III. Applicable Law: IV. Discussion: Section 1. Purpose The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. . Section 3. Restricted Activities (c) No public official or public employee or a member of his immediate family or any business in which the person or a member of the person's immediate family is a director, officer, owner or holder of stock exceeding 5% of the equity at fair market value of the business shall enter into any contract valued at $500 or more with a governmental body unless the contract has been awarded through an open and public process, including prior public notice and subsequent public disclosure of all proposals considered and contracts awarded. Any contract made in violation of this subsection shall be voidable by a court of competent jurisdiction if the suit is commenced within 90 days of making of the contract. 65 P.S. 403(c). There is no dispute that while employed with DER you were a "public employee" and that upon your resignation from DER you became a "former public employee" as of June 30, 1982. It is also clear that the prohibitions of "representation of any person" before the governmental body with which you were associated while employed with the State are implicated in this question. In prior decisions this Commission has clearly indicated that the prohibitions of Section 3(e) apply to the governmental body with which you were associated while employed with DER. The agency with which you were associated is the ODSP. Thus, Section 3(e) would not apply to restrict your ability to contract with the DWQ within DER. Kenneth Schoener November 23, 1982 Page 3 However, prior decisions indicate "representation" includes representing any one in the process of securing or negotiating a contract. See Kilareski, 80 -054. See also the definition of "representation" contained in Commission regulations, 51 Pa. Code 1.1. Thus, if you were to seek a contract or undertake the "representation" of any person before ODSP, this would be within the realm of, prohibited activity. However, since the contract here is with BWQ, no prohibited representation is apparent. V. Conclusion: As a "former public employee" you were and are required to refrain from representing any person within the first year after leaving DER vis -a -vis the governmental body with which you had been associated - the ODSP. Your activities vis -a -vis ODSP should conform to the requirements of Section 3(e) of the Ethics Act. The contract in question with DWQ does not contravene the requirement that you refrain from representing any person before the governmental body with which you were associated (ODSP) while employed with the Commonwealth. Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance of the advice given. This letter is a public record and will be made available as such. Finally, any person may request within 15 days of service of the opinion that the Commission reconsider its opinion. The person requesting reconside- ration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. SSC /rdp cc: Peter S. Duncan, Secretary By the Commission, c \ .- ',A ' 11 U L J . SM I n ^�� ''1