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HomeMy WebLinkAbout87-003 AckerMichael J. Acker 2255 Forest Hills Drive Harrisburg, PA 17112 I. Issue: STATE ETHICS COMMISSION - 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DECIDED V 2 5 1987 MAILED 7 87 -003 Re: Former Public Employee; Section 3(e), Deputy Secretary, Department of Labor and Industry; Member, State Ethics Commission Dear Mr. Acker: This responds to your letter of January 6, 1987, in which you requested the opinion of the State Ethics Commission. You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Pennsylvania Department of Labor and Industry, and the State Ethics Commission. II. Factual Basis for Determination: Effective January 20, 1987, you terminated your position with the Pennsylvania Department of Labor and Industry wherein you served as a Deputy Secretary for Labor. Subsequent to your position as an employee of the Department of Labor and Industry, you were appointed as a member of the Pennsylvania State Ethics Commission. You served in that position until March 3, 1987. Generally as a Deputy Secretary for Labor in the Department of Labor and Industry, your responsibilities included supervision over the Bureaus of Job Training Partnership, Labor Standards, Apprenticeship and Training, Mediation, in the Prevailing Wage Division. Additionally, as a member of the State Ethics Commission, you were one of the seven appointed members who were generally responsible for the administration of the State Ethics Act and the State Ethics Commission. You have indicated that, following your termination with the Pennsylvania Department of Labor and Industry, you were considering accepting the position of senior vice president for marketing with Training Networks, Inc. of Media, Pennsylvania. In this position, you would be providing general consulting services to a wide range of potential clients, including but not limited to Michael J. Acker Page 2 local governments, educational institutions, and private non - profit industry councils. You have further advised that the Department of Labor and Industry serves as a conduit for federal job training funds which are subsequently allocated to local governments and private industry councils in accordance with a formula mandated by federal law. The Department of Labor and Industry maintains no control over the selection of sub - contractors at the local level for which these funds are utilized. You have further indicated that the Department of Labor and Industry has never contracted with Training Networks, Inc. You have requested the advice of the State Ethics Commission regarding the limitations that will be placed upon you following your termination of service with the Commonwealth of Pennsylvania. III. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Deputy Secretary for Labor for the Department of Labor and Industry hereinafter the Department and as an appointed member of the State Ethics Commission, you are to be considered a "public employee /official" within the definition of that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Webber, 83 -604; Conner, 85 -026. Consequently, upon termination of this employment, you would become a "former public employee /official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without 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. Michael J. Acker Page 3 Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Department and the State Ethics Commission hereinafter the Commission. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 62 Pa. Commw. Ct. 174, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within the Department and the Commission. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Department and the Commission. Therefore, within the first year after you would leave Commonwealth Service, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Department and the Commission. Additionally, if while employed by the Department you were designated as a representative on any other agency, commission or council and exercised responsibility, influence and control in relation to such entities your governmental body would also include those entities or agencies. While such has not been indicated in your letter of request, you are advised as to the application of the State Ethics Act in relation to such entities and in the event that additional advice is necessary such may be obtained from this Commission. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department and the Commission. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Commonwealth. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trusts. 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 public employer. See Anderson, 83 -014; Zwikl, 85 -004. Michael J. Acker Page 4 In respect to the one -year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public off;cial or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Department and the Commission), including, but not limited to, negotiations or renegotiations on contracts with the the Department and the Commission; 2. Attempts to influence the Department and the Commission; 3. Participating in any matters before the Department and the Commission over which you had supervision, direct involvement, or responsibility while employed by the Commonwealth; 4. Lobbying, that is representing the interests of any person or employer before the Department and the Commission in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission has also held_that preparing and signing of a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Department and the Commission, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Commonwealth, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to the Department and the Commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Department and the Commission. Once again, however, your activity in this respect should not be revealed to the the Department and the Commission. Of course, any ban under the Ethics Act would not prohibit or Michael J. Acker Page 5 preclude you from making general informational inquiries of the Department to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the the Department and the Commission your representation of, or work for your new employer. In addition to the foregoing, and in order to be complete, you should also be aware of the special provision of the Ethics Act relating to executive -level employees. In this respect the Act provides that: Section 3. Restricted activities. (g) 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 1 oan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 403(g). Executive -level State employee is defined as: Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a deicison. 65 P.S. 402. You, as a Deputy Secretary for the Department of Labor and Industry and as a member of the State Ethics Commission, are clearly within this definition. Muir, 85 -018; Nelson, 85 -008. Michael J. Acker Page 6 Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Additionally, we note that Section 403(b) of the State Ethics Act would prohibit any public employee or public official from accepting a position of employment if said position has been offered based upon the understanding that the official conduct of the employee or official, while working for his former governmental body, was influenced by such offer. See 65 P.S. §403(b). IV. Conclusion: As a Deputy Secretary for Labor and a member of the State Ethics Commission, you are to be considered a "public employee /official" as defined in the Ethics Act. Upon termination of your service with the Commonwealth of Pennsylvania, you would become a "former public employee /official" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one -year representation restriction is the Pennsylvania Department of Labor and Industry and the State Ethics Commission. Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests for the year following your termination of service. 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 reconsideration should present a detailed explanation setting forth the reasons why the opinion requires reconsideration. By the Commission, f. 4. vs. P G. Sieber Pancoast Chairman