Loading...
HomeMy WebLinkAbout05-558 BerkleyStephen Berkley 140 Cooper Avenue Landisville, PA 17538 ADVICE OF COUNSEL June 28, 2005 05 -558 Re: Former Public Employee; Section 1103(g); Chief of Research Division; PA State Civil Service Commission Dear Mr. Berkley: This responds to your letter of June 1, 2005 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. 1101 et seq., presents any restrictions upon employment of a Research Chief hief following termination of service with the Pennsylvania State Civil Service Commission. Facts: On March 18, 2005, you retired from the Pennsylvania State Civil Service ommission ( "SCSC ") as Chief of the Research Division. You have submitted a copy of your job description, which is incorporated herein by reference. In 1999, SCSC issued an RFP for the preparation and integration of software that would computerize SCSC's employment testing process, including the construction of examinations by SCSC test developers and the administration of civil service tests on computers at SCSC test centers. The winning vendor for this five -year project, called the Integrated Computerized Examination ( "ICE ") System, was Raytheon Technical Services ( "Raytheon ") of Pensacola, Florida. The lead project engineer and primary ICE software developer for Raytheon was Brent Funck (`Funck "). You state that although the ICE project was completed in 2004, Funck was not precluded from bidding on future software development for SCSC. In 1999, you were part of the RFP Evaluation Committee that evaluated proposals received by SCSC in response to the ICE RFP. You state that while you were not one of the two project directors, you played a lead role in activities including preparing the RFP, coordinating with prospective vendors, and debriefing losing vendors. After Raytheon was selected as the winning vendor, you were the primary contact with Raytheon as the ICE project was being conducted. Berkley, 05 -558 June 28, 2005 Page 2 Under the contract between SCSC and Raytheon, SCSC has rights to use the ICE software in Pennsylvania for SCSC entrance and promotional testing while Raytheon has rights to market the ICE software to other potential users, such as other states and the federal government. You state that Oklahoma has already purchased ICE from Raytheon and is using it. Recently, Funck, who is no longer employed by Raytheon, began negotiating with Raytheon for a licensing arrangement that would allow him to form a start -up company to sell ICE to other potential users and to provide technical assistance to new accounts as needed. You state that Funck asked you whether you would be willing to represent him by contacting some other state merit systems and other potential users (excluding SCSC). You surmise that you would be a salesman who would ultimately receive compensation if you would contribute to a sale. Based upon the foregoing facts, you ask whether you would transgress the Ethics Act if you would participate in Funck's start -up company as described above. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107(11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. §§ 1107(10), (11). An advisory only affords a defense to the extent the requester has truthfully disclosed all of the material facts. In the former capacity as Chief of the Research Division for the Pennsylvania State Civil Service Commission ( "SCSC "), you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public employee from accepting a position of employment, it does restrict the former public employee with regard to "representing" a "person" before the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -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. 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: Berkley, 05 -558 June 28, 2005 Page 3 § 1102. 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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 Pa. C. S. § 1102. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre - existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former ublic employee may assist in the preparation of any documents presented to his former governmental body. However, the former public employee may not be identified on documents submitted to the former governmental body. The former public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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 work for the new employer. Berkley, 05 -558 June 28, 2005 Page 4 Section 1103(g) only restricts the former public employee with regard to representation before his former governmental body. The former public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service is SCSC its entirety. Therefore, for the first year after termination of service with SCSC, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before SCSC. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that the Ethics Act would not prohibit you from representing Funck/=unck's start -up company in selling ICE to other potential users. However, to the extent your activities would require you to interact with SCSC in a manner that would constitute prohibited "representation," your performance of such activities would be contrary to Section 1103(g) of the Ethics Act. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public employee and no public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; 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 Act. Conclusion: In the former capacity as Chief of the Research Division with the Pennsylvania State Civil Service Commission ( "SCSC "), you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with SCSC, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is SCSC in its entirety. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. 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 requester 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. Berkley, 05 -558 June 28, 2005 Page 5 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