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HomeMy WebLinkAbout89-006 NixonJoseph R. Nixon 89 -006 304 Reservoir Road .Mechanicsburg, PA 17055 Re: Executive -Level State Employee; Former Public Employee; Section 3(g); Automated Purchasing System Project Manager; Department of General Services Dear Mr. Nixon: 1989. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair G. Sieber Pancoast Dennis C. Harrington Michael J. Washo Date Decided: July 28, 1989 Date Mailed: August 8. 1989 This Opinion is issued in response to your request of June 23, Whether the Ethics Law presents any restrictions upon youemp1dyment following your termination of service with the Depart r - ent' of General Services. II. Factual Basis for Determination: You will be employed by Harrisburg Computers, Inc., as the Director of Marketing upon termination of your service with the Department of General Services, hereinafter DGS, on July 13, 1989. In your current position as Automated Purchasing Systems Project Manager, you report directly to the Deputy Secretary for Procurement. Your main responsibilities involves coordination, development and management of the automated purchasing system. You also served as agency representative to ICS and CIMIC. You served as final approval authority for all Automated Technology Resource (ATR) requests for proposals for the Commonwealth. You served as contact with the Comptroller's Office, the Office of General Counsel and other Commonwealth entities. Mr. Joseph R. Nixon Page 2 Your job , description, which is incorporated 'herein by reference, further indicates that you managed all multiple. agency projects and acquisitions regarding ATR initiatives and that you served as primary contact for vendors and the Commonwealth. in this respect you were responsible for resolving conflicts. You have served on many requests for proposal committees and have advised the Deputy and the Bureau of purchases on many : ,computer related procurement issues. You - advise that although you, as 'a staff member do not set policy, you do participate as an advisor. In your position as Marketing Director for the Harrisburg Computers, Inc.,u will not be required to directly make sales to the Commonwealth "hut tit may be necessary to interact with executives of Commonwealth agencikes who are customers of Harrisburg Computers, Inc. After expressing ; your understanding that you are prohibited from directly soliciting business from your department, DGS, for 'one year :after :retirement, you request an opinion of this Commission which would detail the limitations upon you in your new position. III. Discussion: As an Automated Purchasing Systems Project Manager for DGS, you are to be considered a " public employee" within the detin °ition of that term as set forth in the Public Official and Employee Ethics Law. '5 P.-S. S402. This conclusion is based upon the job description, which when reviewed on an cbjective basis, indicates clearly 'that the power exists to take or .recommend official action of a _non-ministerial nature with respect to contracting, procurement, planning, and leasing. Additionally, you are an "executive -level state employee" as that term is defined under the Ethics Law in ::light ‘ : of the fact that you have discretionary power or could influence the „outcome of -a decision in relation to a private corporation or business. Consequently, upon termination of employment, you .would 'become :a "former - public employee” subject to Section 3(g) of the Public Official and Employee - Ethics Law and a former executive- level state employee subject to the provisions of Section 3(i) of the :Ethics :Law. Sections 3(g) and (i) of-the Ethics Law provides 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 the leaves that body. 65 P.S. g402. Mr. Joseph R. Nixon Page 3 (i) 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 from the Commonwealth to the business or corporation recruited or induced to expand. We shall consider the restrictions of Section 3(g) followed the limitations set forth in Section 3(i). In applying Section 3(g) it is necessary to determine the governmental body with which you were associated while working with DGS must be identified. Then, the scope of the prohibitions associated with the concept and term "represent" must 'be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the 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 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. 65 P.S. S402. Clearly, the governmental body with which you have been associated upon the termination of employment would be DGS. Therefore, within the first year after termination of service with DGS, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis - - vis DGS. by Kr. Joseph R. Nixon Page 4 The Ethics Lew does not affect one's ability to appear* before agencies or 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 may. It is noted, however, that the conflicts of interest laud is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the terra 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. In respect to the one year representation, the Ethics Law defines "Represent" as follows: 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: 65 P.S. 5402. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business* governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. 65 P.S. S402. This Commission interprets the term "represent" az used in Section 3(g) of the E Law to prohibit4 1. Personal appearances before the former governmental body or bodies, (that is DOS), including, but not limited to, 'negotiations or renegotiations in general 'or as to contracts with DOS; 2. Attempts to influence DOS; 3. Submission, of bid or contract,proposaia which are signed or contain the name of the former btaic cof°ficiallemployoe; Mr. Joseph R. Nixon Page 5 4. Participating in any matters before DGS over which there was supervision, direct involvement, or responsibility while employed by that governmental body; 5. Lobbying, that is representing the interests of any person or employer before DGS in relation to legislation, regulations, etc. We also find that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by DGS constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. However, the above restriction would not extend to including one's name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by DGS. You may, assist in the preparation of any documents presented to DGS so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DGS. Once again, however, the activity in this respect should not be revealed to DGS. Of course, any ban under the Ethics Law would' not prohibit or preclude the making of general informational inquiries of DGS to secure information which is available to the general public. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the governmental body the representation of, or work for the new employer. We also determine that the administering of an existing contract as opposed to negotiating or renegotiating a contract would, not be' prohibited by the Ethics Law. Finally, it is important to note that your job description clearly indicates that as Automated Purchasing Systems Project Manager, you had input or exerted influence regarding the decisions of other state agencies in ATR matters. As such, the governmental body with which you are associated may extend beyond DGS, and you may need to seek the additional advice of this Commission as to whether there are any other restrictions on your future activities in relation to such other commonwealth agencies. In your capacity as an executive -level state employee, you are subject to the restrictions of Section 3(i) quoted above. As noted above, Section 3(i) sets forth a specific prohibition that a former executive level state employee for a period of two years` after termination of state employment may not be employed by, receive compensation from or act in a representative capacity for a business or corporation that the former executive level state employee participated in recruiting to initiate or expand operations in the Commonwealth. It should be further noted that the above restriction Mr. Joseph R. Nixon Page 6 is limited to the situation where the recruitment is accomplished by a grant or loan for money or promise of a grant or loan for money from the Commonwealth to the business or corporation recruited or induced to initiate or expand operations. The intendment of the above provision of the Ethics Law is to prohibit an executive level state employee from trading upon his ability to influence the disposition of public funds to private businesses or corporations by securing future employment from entities receiving such funds. Thus, if you were engaged in activities as outlined above, you would be subject to the two year employment restriction of Section 3(i) of the Ethics Law. In addition, Sections 3(b) and 3(c) of the Ethics Law provide 'part that no person shall offer to a ublic official / employee anything of monetary value and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public : official /employee would be influenced thereby. Reference is made to these sections of the ; law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the questions that you have 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 Act has not been considered in that they do not involve an interpretation . of the Ethics Law. IV. Conclusion: As an Automated Purchasing Systems Project Manager, you are to be Considered a "public employee" and an executive -level State employee as defined in the 'Ethics Law. Upon termination of service with `DGS, kou would be sib ject to the restrictions = imposed by .Sections 3(g) and (i) of the Ethics Law. As 'such, :your conduct should conform to the requirements of the Ethics Law as outlined "above . The propriety of "the proposed conduct has only been addressed under the EthicB 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(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 'dLsolosed truthfully all `the material facts and 'Committed =the lhcts complained oaf 'in " of the evidence of the advice given. Mr. Joseph R. Nixon Page 7 such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider :its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinfbn. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. Commissi elena G. Hughes Chair