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Home My WebLink About92-534Mr. Harry D. Sewell, Vice President 92-534 Harrisburg Computers, Inc. 425 South Cameron Street Harrisburg, PA 17101 Re: Former Public Employee; Section - 3(g); Section 34); Deputy Secretary, Office of Administration, Department of ,Public Welfare. Dear Mr. Sewell: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11.470 HARRISBURG, : PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 13, 1992 This responds to your .letter of December 17, 1991,, ,i-n ; which you requested advice from the State Ethics Commission. Issue: Whether the Public Of ficial and Employee Ethics Law presents any restrictions employment of the Depaty'pRptiary for Administration following termination of servj Akth Alps Commonwealth of Pennsylvania, Department of Public4e . Facts: As the former Deputy Secretary for AdmirlistAktApn the Commonwealth of Pennsylvania, Department of Publ is t rial aild having served in that capacity from i;1 >37 ',uatt l Noveiber, 1991, you seek the advice of tt a to .Ethics . Cc mission regarding your present employment }n e . l a te 'sector with Harrisburg Computers, Inc. (HCZ) . 3iY4wa 'Deputy Secretary for Administration for DPW,-yOu-r!Poteld.l.Pcthe Secretary and were responsible for the 404y- today ' bA operations of the eight organizational units ,fornung tt e .: Oqice of Administration, which units reported to v y u nand specifi4a1ly included: the Bureaus of Administrative Sewes, Cigii -Rits Compliance, ; Financial Operations, P r5, ;:Ea.cilties Management State General Hospitals and Irform tiiii S tams along with Human Resources and Organizational Development4ection. You 'state rthat ?your duties included sigiing . contpacts, mi kirlg coomplement decisions, setting data processing ,,p ,o t es and monitoring . the , agency . R s expenditures. ) s of November ;.1991, :you joined :HCI President for New ° + Easiness . Develppiaent . . $Ki 'than .,l2een ; n , § usiness since 1985 and mark8ts - oomputer hketrdwaNe, salt ere and - services on a Mr. Harry D. Sewell FebrusrY 13 , 1 Page 2 The follOws;, nationwide basis. In thie position, you will be responsible or assisting HCI in enterin, new markets, developing or acquiring new products and forming klUittegic business partnerships. YoU note that you do not intend to represent HCI before DPW over the next year. You further note that you did not have any participation in the formation of HCI as a Pennsylvania company. You express that it is your understanding that you my requeSt and receive public information from DPW. Based upon all of the above, you seek guidance as to activities that are permissible in your business dealings with the Commonwealth. Discussion: As the Deputy Secretary for Administrationl for the Commonwealth- of Pennsylvania, Department of Public Welfare (DPW) you would be considered a "public employee" within the disfinitiOn of that term as set forth in the Public Official and Employee Ethics Law and the. RegulatiAms of this Commission. 65 so.a. Section 402; 51 Pa. Cods Section 1.1. On an objective basis, your job duties and respOnsibilities clearly included the power ' to take or recommend of foial action of a now-ministerial nature Kith respect to contracang,,, procurement, planning, inspecting, administering or monitoring gpants, leasing, regulating, auditingl or other activities w1S4s- the economic impact is greater than del 11441Lis4S. on the interest e: of another person. In addition, yo an, executive-level state employee as that term is defrinAdl twilPrr the. Ethics LaW and hence you are subject . to the requippmentksz, of. Section 3'(i) ot the Ethics Law, Sect4.on 3( a); of thlk Ethics Law provides1 Section 3 1‘4altrict941,42titrities. (a:). Na public of or ptublic emPPPYffe-- eng it condt`ct that const,i.tutes- ectiglictt. off interest teriSL: arec, defined in the Ethics Law ay "Colginct Cciii‘ I le0':Of '1'.interest'. Tiber- by a - /3034c- oeiticlia: or' pubftc employee of" the aUthogity-tof hi r offi0e or emplorgent. or any coniidenWri' ,illoptiatiOnreceived throtigh7 his holding:Palitoffice or -employment for the private benefit of!himSekfT'a Mr. Harry D. Sewell February 13, 1992 Page 3 member of his immed family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of. his immediate family . or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of dutie4 and responsibilities unique to a particular public office or position of public employment. "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 deci:aion in relation to a private corporation or business or employee who by virtue of his job function could influence the outcome of such a decision. f Ind`di�Cion, Sections 3(b) and. 3(c ), of the Ethics Law p rovide 44n pOr that _ no person shall Offer to a public - official /em ioyee anything of monetary vi1uie and• no public official / employe shall solicit or dept :anything of monetary value based upon the under'8tanding jhat .the vpte official action, or judgement of the, piublic' official/employee would be influenced thereby. Reference is made to these provisions of the larw not to imply that thre had been or will be any transgression thereof but merely to pro a ° cornplete rt'sponse. to the question present 3ti f -t he ; 't3 ' ti `id �'ecti�' c� aw; `�irbv C y . Sects - �3 • R Activities Mr. Harry D. Sevell February 13, 1992 Page 4 (i) No former executive-level State employee may for a...ppricid of two Yetirs froett the time. that he tertainates his State erapkayment be emplOy4 by, ric4iye ctimpensation from, assist or dat in a repreSentative capacity for a piiii-neiS or corporation that' he, stikTS partitiPates in recruiting to the Copmpnvie4ih Penrksylvg.nia or .thgt, he actiVely pa'rticipated' in inducing : to _ogoo a' new p1ant, facility or branch in the prtmioxiileaXtli o'r that he - aCtively_ partickpated. to expand an existent plant or facilitY the Commonwealth, provided that tho: above prohibition, shall be invoked - onl wen the recruitment - ,inehi6ment is ac•1tshed by a',grant. or loan of MOnpy or a: prorlid grant or ,Ipan' of mOrieY from the COMIrichisttealth to the bi.1.01:014 or corporation recruited or induced to elipanth Under Section 3(a) of the Ethics Lav cirtatid above, a public official/employee nay ,not use the authority �f piiblic office/employment„ ot coiitiAntial received by holding such a public gogitipix.: tor th4. private ifethirtiA7' bdrief ft of himself, c a.Mber of hisinmi4iate family, or business with which he or a member of his imie'diate family is ss6diatd. - • , As guots4.abovS1..$06t-ton,3'(i) sets firth g sr fic prohibition., that a former eiikOltbie=1e tat ictii16,64 for a period of two y4ars el:ft* termijiitilizi � state not be employed or r.0*.1.4410 c6iipaiiticSii or act in a representative capacity for a busLirIeSS or 6646igi:i6h that the former .executive-io'ii61 **.t4,04 iec tnififi g Or 14ducing:. It *11011/4 ADO further noted that the participated - restriction gp0440.41Y.4111140 to the situatlon iheie the redrdit4lieritAgjapiceteat, ig iccOmpUghea by a giant or Idein of .p romis or lekii of iohq th Cott(56400,Itil cg,1*Ail407414 to ihe b44ii or dditdiii recited or 140740440. xpand. The iii0144fii of t$t.i/V Otovi4Ori Q;j110,0140,07te t9-00/10it n aiWi stgfa,empl.Oyee fr6d,047ftri44Tinli*t reiweee#tatilie,0;.veriaiWIAIOneWe ot 6 44 6 i44 04, thgt recruit or,i4d4ced,,vo expand. ,Thaik ot±oft (1.) 6f 06 Ethics Law wouid,reStriot 4410.65rmeht.ft;i * tso yer priod t� arty busixesg or corporiitiOn if the iOaaitgIttit or ifiafibeffint tias accomplished by g. rant or loin of,i6fiai or prOnhi8 0± agight or loan of mqney froni the coOeilth of ensy1vanU :68 the business Or corporation Ofiih was iediuited or induced E6 644fid. Section 3(i) of the Ethics Law would nbt preclude exnployxnent or Mr. Harry D. Sewell February 13, 1992 Page 5 representation of clients unless the abQvelqualifying condition of Section 3(i) is applicable: In applying Section.3ta)- of the Ethics Law to the proffered facts, Sect n,,3(a)_would prohibit you from using the position or emoluments ` :Our public position or confidential information to advance 'an 'pprtunity of private emp1oyieht with HCI. Once again4r it 0,iot suggested that you have engaged in such conduct and ti fo egging is provided to give a complete response to your inquitir A.% tb ei . .ton, 3 (i) of the Ethics Law, you are subject to that prdvison of law since you are an executive -level state ern ic�yee . Howe er, Section ` 3(i) would not i restrict you from the PP.ition of employment with HCI provided you did not actively participate 'in..recruiting or inducing HCI to open anew facility or branch in- the. Commonwealth or participate in inducing HCI to expand an existing plant or facility that .was accomplished by a grant or loan of money or a prouu.se.of_a grant or loan of money from the Commonwealth of Pennsylvania to HCI: The facts do nQt.indicate,whether. you• actively participated in either recruiting or inducing HCI td open .a., new . facility or branch or :expand , through a grant _ or loan. ` of' money from the . Commonwealth. Acco�rciingly, _.and )cased upon-the assumption that there has, been no active.. participati.on by.- ►oi in.. silch- recruitment or inducement Of HCI : _ .to open or ekpaxic), a facility oX .branch through a grant or loan of money or: a_prbmise of ! ...gfant or_ of money from the Commonwea. th, bf .bean y, , tatn:ia, you would not be :prohibited : accepting the position of employment with HCI. Upon. termination of public service; you, would become a "former pib.ic employee" subject tdr Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 4. 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, • Initially, to answer your request the governmental body with which. yob. have been associated while working...wjth DPW must be identified. Then scope of the prohibitions associated with Mr. Harry D. Sewell February 13, 1992 Page 6 the concept and term of "representation" must be. reviewea. The term "governmental body with whiCLa RUh4C of:fia (Sk public employee is or has been associated" is defiA4d under tIcg Ethics Law as follows: Section 2. Definitions. "Governmental body with ,which a public official or public employee is or has been associated:" The governmental body within . State government or a by which the public official or employee is or has been employed or to which the_pliblic official or empIoyee.is or has been appointed or elected and subdivisions and offices within :that governmental body. In applying the above definition to the instant matter, we must conclude that the governMental body With which you have been associated upon termination of public service would be DPW in its entirety, including but not limited to the Of4de 9f Administration. The above is based upon the language of the Ethics Law; the legislative intent (Lectslative4olitnal of-House, 1989 Session, No 15 at 290, 251) and the prior_OkePedent of this Commission. Thus, in Siro4i, Opinion 90-406,the.CoM4ission found that a former Division Qitector of the DePlattMent of Public Welfare (DPW) was not merely_restricted,to the .partioular Division as was contended but,waS.in fact restricted to all of DPW regarding the one-year representation restriction. .$imilarly in Sharp, Opinion 90-009-R; it was deterMined that a foruter legislative assistant,to.a state senator 14n,s not merely restricted to that partidular senator but to the entire tenite as his former governmental body. Therefore, within the first year after termination of service_ with DPW, Section 3(g) of the E 1hLcs Law would apply and restrict representation of petsons or new employets vib DPW. It is noted that Act 9 Of 1989 significntly broadened the definition of the term “governmental body 14th ifiliph a public official or public employee ig or has been4asgociated:", It was the specific intent of the General. Assembly todefinethe above term so that it was not merely limited to the atea Where a public official/employee had influence or control but extended to the entire governmental body with which the public official/employee , , „ Mr. Harry D. Sewell February 13, 1992 Page '! was associated. .The foregoing intent is reflected in the legislative debate relative to the amendatory language for the =above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an. agency or a local government but.the entire unit... L Jour of House, 1989 Session, No. 15 at 290, 291. Therefore - , since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C 1901, it is clear that the governmental body with which you have been associated is DPW in its entirety, including but hot limited to the Office of :Administration. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies qr entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. 1t is noted, however that the conflicts of interest law is primarily condetted "with financial conflicts and violations of the public trust. 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 governmental body:' In respect to the one year restriction against such "representation•, " the Ethics Law defines "Represent` as follows: Section _ 2. Definitions. "Represent." To act on behalf of any other person it any which includes', but is hot limited to, the following: personal appearances, negotiations, lobbying 'arid submitting bid or contract proposals ' rhich_are signed by or contain the name of a former public official or public ; employee. 1 .4 In addition-, the term "Person" is defined as follows , undet the Ethics Law: Mr. Harry D. Sewell February 13, 1992 Page 8 Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union association, firm, partnership, committee, club or other organization or group of persons. The Commission, in P ovich, Opinion 89 -005, has also interpreted the term "representation" as used in. Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts 2. Attempts to influence; 3. Submission of bid dr contract proposals which are signed 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; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. The Commission has also held that listing one's name as the person who will provide technical assista1ice on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shay, Opinion 91 -0L2, the Commission held that Section 3(g) would prohibit the - inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental bddy,, even though the invoices pertained to a contract which existed pride to termination of public service. .Therefore, within! the first year after termination of service, you should not engage in the type of activity outlined above. You, may assist in the preparation of any documents presented to DPW so long as you are not identi as the preparer. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be rev to DPW. Of course, eny'ban under the EthicB Lew .:.wouid not prohibit or preclude the making of general informational . inquiries of DPW. to Mr. Harry D. Sewell February 13, 1992 Page 9 secure information which is available to the general public. 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 wbrk for the new' employer. 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. such • Conclusion: As the Deputy Secretary for Administration for the Commonwealth of Pennsylvania, Department of Public Welfare (DPW), you would be considered a "public employee" and an executive level 'state employee subject to the provisions of the Ethics Law. Under Section 3(i) of Ethics Law, you would not be prohibited from accepting a position of employment with Harrisburg Computers, Inc., based upon the assumption that you did not actively participate in inducing or recruiting said company to open or expand a facility or branch through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Upon termination of service with DPW, you would become a "former public einpl subject to ' Section 3(g) of the Ethics Law. The former governmental body is DPW in its entirety, including but not limited to the Office of Administration. 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 also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(11), this Advica it a complete defense in any 'enforcement proceeding initiated by the Commission, and 'vidence 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 reliant on . the Advice given. This letter is a public record and will be made available as Finally, °.if =you disagree with this Advice or if you have any reaten to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will.be issued. Any such appeal must be in writing Mr. Harry D. Sewell February 13 1992 Page 10 and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, s� �o ko Vincent p Chief Counsel