HomeMy WebLinkAbout03-566-S GiordanoNicholas Giordano
12 South 27 Street
Camp Hill, PA 17011
Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State
Employee; Section 11030); Director, Bureau of Telecommunications Services;
Office for Information Technology; Office of Administration; Supplemental Advice.
Dear Mr. Giordano:
ADVICE OF COUNSEL
July 31, 2003
03 -566 -S
This responds to your letter of July 9, 2003, by which you requested
supplemental advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
§ 1101 et seq., presents any restrictions or prohibitions upon the employment
of a Director of Telecommunications Services following termination of service with the
Office for Information of Technology, Office of Administration, Commonwealth of
Pennsylvania.
Facts: You initially requested an advisory from the State Ethics Commission by
lefteiof June 6, 2003. In response to your initial request, Advice, 03 -566 was issued to
you on July 1, 2003, which Advice is incorporated herein by reference.
In your supplemental advisory request, you raise an issue regarding Section
11030) and its applicability to you in connection with Adelphia Business Solutions, Inc.,
now doing business as TelCove.
While on the RFP Evaluation Committee as Chairperson for the Commonwealth
Telecommunications Services Acquisition, RFQC 1998 - 081 -02, TelCove responded
with a proposal that received the highest evaluation score of the proposals submitted in
response to that RFQC. The Commonwealth awarded TelCove the contract,
Commonwealth Contract ME981464, which became effective in May 2000. You were
named Contract Administrator for that contract and so remained until your retirement on
June 27, 2003.
As part of its original response to RFQC1998- 081 -02, TelCove suggested a
public - private partnership named KeyNet. The purpose of KeyNet was to be the
mechanism for expanding TelCove's fiber optic telecommunications infrastructure to
underserved areas of Pennsylvania that were not reached by the construction required
by TelCove to satisfy the Commonwealth per the contract requirements. TelCove
offered up to $10 million as an initial fund for matching existing Commonwealth
programs, or federal government grant programs secured by the Commonwealth, for
the purpose of expanding the network infrastructure. Per the KeyNet portion of
Giordano, 03 -566 -S
July31, 2003
Page 2
TelCove's proposal, TelCove would match grant funding provided by the
Commonwealth for infrastructure projects approved by the KeyNet Board of Directors.
KeyNet Alliance was organized as a 501(3)C not - for - profit organization after the
award of Commonwealth Contract ME981454. The KeyNet Alliance Board of
Directors consists of one independent director, three TelCove members, and three
Commonwealth members who are the Secretaries of Administration (OA), Education
(PDE), and Community and Economic Development (DCED) Each board member may
designate another person to act as the alternate board member in the event of the
primary member's absence. The Secretary of Administration designated you as his
alternate member of the KeyNet Board and you so remained until January 2003.
All Commonwealth matching funds to establish the KeyNet Alliance and to
provide project matching funds grants for approved KeyNet projects were provided
exclusively by DCED. You did not participate, either in your capacity as Contract
Administrator for ME981464 or as alternate member of the KeyNet Alliance Board of
Directors, in the award of Commonwealth grants provided as matching funds under
KeyNet. All KeyNet funding was handled by DCED, rather than OA.
Given the above additional background, you seek advice as to the applicability of
Section 11030) of the Ethics Act vis -a -vis your ability to accept employment or
otherwise engage in business relationships, directly or indirectly, with Adelphia
Business Solutions, Inc., not doing business as TelCove.
Discussion: Since there were no specifics in your original letter of request dated
June 6, 2003, you were provided a general response as to the applicability of Section
11030), as well as Section 1103(g) of the Ethics Act. You now have posed a very
narrow question in this supplemental advice request. The response below is limited
solely to addressing that issue.
Initially, it is noted that Confidential Opinion 94 -011 is the seminal Commission
decision which discusses and applies Section 11030) of the Ethics Act. With the
additional information provided, you are advised that Section 11030) of the Ethics Act
would prohibit your employment with or the receipt of compensation from Adelphia
Business Solutions, Inc., now TelCove. You played an active role as RFP Evaluation
Committee Chairperson in the award of Commonwealth Contract ME981464 to
TelCove. You became and continued to be Contract Administrator for that contract until
your retirement. But for the fact that TelCove received that contract, the creation of the
KeyNet Alliance and the subsequent DCED grant funds would not have occurred. Per
the submitted facts, although you did not participate as to the award of Commonwealth
grants as matching funds under KeyNet, you were an integral part of the process which
enabled such grants to be eventually awarded. Thus, you did actively participate in the
award of the Commonwealth contract which induced Adelphia Business solutions, Inc.,
now TelCove to expand its facilities in Pennsylvania. That contract segued into KeyNet
receiving matching grant funds (as to funds offered by TelCove) from DCED. You were
the alternate board member of KeyNet for the Secretary of Administration of the
Commonwealth of Pennsylvania until January 2003. As noted, KeyNet (applied for) and
received matching grant funds from DCED.
The above occurrences were not disparate events but rather one integrated and
planned scenario. This is not to suggest that any wrongdoing occurred as to the award
of the Commonwealth contract and subsequent DCED grants. However, you actively
participated in this scenario which falls within the ambit of Section 11030). As noted in
the base Advice, Section 11030) under such circumstances bars for a two year period
any employment or the receipt of compensation from such business. In this regard,
TelCove is a "business" as that term is defined under Section 1102 of the Ethics Act.
See, 65 Pa.C.S. §1102. Accordingly based upon the above, you may not, under
Section 11030), accept employment or compensation from Aldelphia Business
Giordano, 03 -566 -S
July31, 2003
Page 3
Solutions, Inc., now TelCove for a period of two years after termination of
Commonwealth service.
Conclusion: Upon termination of service as the Director, Bureau of
e
Telecommunications Services in the Office for Information Technology, Office of
Administration, you became a former public official /public employee and a former
executive -level State employee subject to the restrictions of Section 1103(g) and
Section 11030) of the Ethics Act. Given your active participation in the award of the
Commonwealth contract to TelCove, your position of Contract Administrator of that
contract, your position as an alternate board member for KeyNet which received
matching funds from the Commonwealth, Section 11030) of the Ethics Act prohibits you
from accepting employment or compensation from TelCove for a period of two years
after termination of service with the Commonwealth.
Pursuant to Section 1107(11), an Advice is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any other civil or criminal proceeding, provided 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.
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Commission. A personal appearance before the Commission will be
scheduled and a formal Opinion will be issued by the Commission.
Any such appeal must be in writing and must be actually
received at the Commission within thirty (30) days of the date of this
Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be
received at the Commission by hand delivery, United States mail,
delivery service, or by FAX transmission (717 -787 -0806. Failure to
file such an appeal at the Commission within thirty (30) days may
result in the dismissal of the appeal.
Sincerely,
Vincent J. Dopko
Chief Counsel