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HomeMy WebLinkAbout80-056 DaltonCourtland D. Dalton Bureau of Personnel, OBA 513 Finance Building Harrisburg, PA 17120 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 December 3, 1980 OPINION OF THE COMMISSION RE: Section 3(e), Contracting Bid Process Dear Mr. Dalton: I. Issue: You request an opinion as to the application of Section 3(e) of the Ethics Act and a delineation of the extent of any prohibition contained in Section 3(e) of the Ethics Act to yourself. II. Factual Basis for Determination: 80 -056 You are currently serving as a Personnel Analyst IV (Benefits) in the Bureau of Personnel, Office of Budget and Administration. As such, your duties include reviewing the rates and competitive bids presented by contractors in regard to such State- benefit programs as medical and health insurance plans, life insurance, unemployment and workmen's compensation, supplemental work - related disability programs and many other benefit programs. In this capacity you perform such tasks as directing the review of rate increases from Capitol Blue Cross and Pennsylvania Blue Shield and play a role in recommending their acceptance and modifi cation to the Director of Personnel. You develop and recom- mend management positions to be used in collective bargain- ing procedures. Finally, and most importantly, you direct and /or participate in the competitive bidding process for benefit program placement insofar as you are within the chain of approvals through which the rates and successful bidder recommendation must proceed. You are seeking and /or considering employment with Pennsylvania Blue Shield either in the staff capacity engaging in similar work to that in which you performed for the Commonwealth or in a "line" capacity in health insurance benefit design and /or development. Courtland D. Dalton December 3, 1980 Page 2 III. Applicable Law: The most pertinent provision of the Ethics Act is Section 3(e) which provides that: "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(e). IV. Discussion: There is no dispute or doubt that you are a "public employee" as that term is defined in the Ethics Act. This conclusion derives from your responsibility in regard to contracting which you have described above. However, the impact of this decision must be reviewed in light of the term "representation" and the prohibition contained in Section 3(e) of the Ethics Act. The Commission has had occasion to interpret the word "representation" in previous opinions. This prohibition and this term have been held to preclude for the one -year period the following: 1 personal appearance before the governmental body with which you were associated, including but not limited to negotiations on contracts; 2. attempts to influence that governmental body; 3. participation in any manner in a case over which ypu had supervision, direct involvement, or responsibility while employed with the govern- mental body; • 4. lobbying, that is representing the interests of any person, before that governmental body as to legislation, regulations, etc. See Morris, 80- 039 and Russell, 80 -048. Courtland D. Dalton December 3, 1980 Page 3 In an opinion issued this date the Commission held that a former employee engaged in a contracting process such as yourself may not leave that position and then sign and submit bid proposals to that former governmental body within this one -year period. See Kilareski. This same principle would apply in your case. Specifically, while you could administer a contract which was awarded to Capitol Blue Cross or Pennsylvania Blue Shield, even though you had responsibility and /or supervision over health and benefit programs, in general, you could not negotiate a new contract or changes in the existing contract as an employee of Pennsylvania Blue Shield or Capitol Blue Cross. In the area of submission of new bids by Pennsylvania Blue Shield or Capitol Blue Cross to the Office of Budget and Administra- tion, your conduct for the year after you leave Commonwealth service would be regulated by the following criteria: 1. You may not sign and submit under your own signa- ture proposals for Pennsylvania Blue Shield or Capitol Blue Cross although you could assist in preparing such bids to be submitted by another; and 2. Your name could not be listed in the bid proposal as an individual who would be involved in admin- istering the contract or providing technical assistance on the subject of the proposal; but you may administer, rather than negotiate, any such contract that is awarded in accordance with the limitations expressed here. V. Conclusion: You are a former public employee and your conduct as such is to --be guided by this opinion. You are prohibited for the one -year period from engaging in activities outlined in the categories above. Specifically, you may not: ` 1. personally appear before the governmental body with which you were associated, the Office of Budget and Administration; this includes nego- tiating any contract with that govermental body and signing and submitting under your own name any proposals to be reviewed by that governmental body or allowing your name to be listed in such proposals. 2. attempt to influence that governmental body as in number one (1) above and to include lobbying, that is, representing the interests of any person before that governmental body in regard to legis- lation, regulations, etc.; Courtland D. Dalton December 3, 1980 Page 4 SSC /rdp 3. participate in any manner in any particular case, matter or contract over which you had supervision, direct involvement or responsibility while employed by the governmental body. See Adler, 79- 043. In this area you may deal in general, with benefit programs, and you may administer a contract, but you may not negotiate on any future contract which is to be awarded in accordance with the limitations expressed herein or.otherwise for the one -year period. 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 on the advice given. This letter is a public record and will be made available as such. / A PAUL J, SMITH Chairman