HomeMy WebLinkAbout05-608 SwartzTerrance J. Swartz, President /CEO
String Industries Corp.
939 Kranzel Drive
Camp Hill, PA 17011
Dear Mr. Swartz:
ADVICE OF COUNSEL
December 22, 2005
05 -608
Re: Former Public Employee; Section 1103(g); Assistant Director and Operations
Manager; Pennsylvania Department of Corrections, Bureau of Correctional
Industries.
This responds to your letters of November 14, 2005, and November 21, 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. resents any restrictions upon employment of an Assistant
Director and Operations Manager following termination of service with the Pennsylvania
Department of Corrections, Bureau of Correctional Industries.
Facts: You are the former Assistant Director and Operations Manager for the
Department of Corrections ( "DOC "), Bureau of Correctional Industries. You have
submitted a copy of your job description, which is incorporated herein by reference.
You seek an advisory from the State Ethics Commission based upon the following
submitted facts, the material portions of which, may be fairly summarized as follows.
On June 17, 2005, you retired from DOC. In February 2005, you incorporated
String Industries Corp., registering as a consultant /security services /systems. You state
that you did not generate any business or seek any business transactions until
November 2005.
In August 2005, you attended the Pennsylvania Facilities Maintenance Managers
Association "PFMMA ") annual conference where you met several representatives of
companies that are conducting business or trying to conduct business with the
Commonwealth. You state that you met a representative from Digital Datacatch, a
Maryland company, who asked whether you would be interested in working as a
consultant. You state that you accepted the offer and signed a contract with Digital
Datacatch for close circuit television ("CCTV") and digital video recording ("DVR" You
state that the "companies" hired you to build a sales and service relationship within the
Commonwealth and help "move" their product. You note the "company" already has a
market with Pennsylvania Prisons. You state that the "companies" requested that as a
Swartz, 05 -608
December 22, 2005
Page 2
consultant, you attempt to set up training on various industry technologies to all
departments within the Commonwealth through PFMA.
Thereafter, you contacted several DOC employees and asked them whether you
could help set up training through PFMA. At that time, the DOC Bureau of Operations
Director advised you to review `Act 93" and the Assistant Bureau Director told you that
you were not permitted to conduct any business with any Commonwealth department,
not just DOC. You state that you then cancelled your contract with the company that
hired you and refused to accept any payment for services you rendered to date so as to
avoid any potential violation of the Ethics Act.
You contacted the State Ethics Commission and spoke to an attorney in the
Legal Division who gave you general information regarding the Ethics Act and
suggested that you write to the Commission for an advisory. Based upon the foregoing
facts, you pose the following specific inquiries.
1. Whether you are correct in assuming that the following quoted provision from
Management Directive 205.12 directly applies to you:
(2) No former public official or former public employee shall
represent a person, with actual or promised compensation,
on any matter before the agency with which the employee
was associated for one year after the employee leaves that
agency.
Enclosure 1 to Management Directive, 205.12 Amended of April 15, 2005.
2. Whether you are permitted to conduct business with Commonwealth
departments other than DOC; and whether Probation and Parole and the county
prisons are separate from DOC;
3. Whether there are any exceptions to the Ethics Act or Management Directive,
205.12, and if so, whether there is information available as to the circumstances
triggering such exceptions.
4. Whether there are penalties if an individual violates Management Directive
205.12.
5. Whether you are permitted to interface with architects who are bidding on any
DOC contracts;
6. Whether you are permitted to work with any general contractor doing business
with DOC;
7. If you would work for a business and receive a 1099 form, whether you would be
permitted to go to work for that business performing work within DOC; and
8. If you would shut down your business, whether you would be permitted to go to
work for a company that is already doing business with DOC.
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.
Swartz, 05 -608
December 22, 2005
Page 3
In the former capacity as Assistant Director and Operations Manager for the
Department of Corrections (`DOC "), Bureau of Correctional Industries, 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 § 11.1. This
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 official /public employee
from accepting a position of employment, it does restrict the former public official /public
employee with regard to "representing" a "person" before the governmental body with
which he has been associated ":
65 Pa.C.S. § 1102.
§ 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:
§ 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.
Swartz, 05 -608
December 22, 2005
Page 4
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 public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the former ublic
official /public employee may not be identified on documents submitted to the former
governmental body. The former public official /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.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public official/
public employee is not restricted as to representation before other agencies or entities.
However, the "governmental body with which a public official /public employee is or has
been associated" is not limited to the particular subdivision of the agency or other
governmental body where the public official /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 would be DOC in its entirety including, but not limited to, the Bureau of
Correctional Industries. Therefore, for the first year after termination of service with
DOC, Section 1103(g) of the Ethics Act would apply and restrict "representation" of
"persons" before DOC.
Having set forth the restrictions under Section 1103(g) of the Ethics Act, your
specific inquiries shall now be addressed.
In response to your first question, you are advised that the provision you quote is
from a Management Directive, not the Ethics Act. Section 1103(g) of the Ethics Act
quoted above restricts a former public official /public employee from "representing" a
"person" before "the governmental body with which he has been associated." As
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December 22, 2005
Page 5
noted above, the governmental body with which you have been associated is DOC in its
entirety including, but not limited to, the Bureau of Correctional Industries.
In response to your second question, Section 1103(g) of the Ethics Act would not
prohibit you from conducting business with Commonwealth departments other than
DOC such as the Board of Probation and Parole or other governmental bodies such as
the county prisons as such would not constitute your former governmental body.
In response to your third question, you are advised that the Ethics Act does not
provide for "exceptions" or "waivers" of the applicability of the restrictions of Section
1103(g). The State Ethics Commission does not have the authority to grant that which is
not authorized by law. See, Richardson, Opinion No. 93 -006; Ziegler, Opinion No. 98-
001. As the Commission stated in Ziegler, supra:
[T]his Commission is duty -bound to apply the Ethics Law as it has been
promulgated by the General Assembly. The statute provides for the
Section 3(g) restrictions to apply to all former public officials /public
employees. There is no mention in the statute of any "variances" or
"exceptions." Obviously, the facts in any given case may be more or less
compelling than in others, but the law must be applied fairly and uniformly.
Id. at 6.
Similarly, in your case, the State Ethics Commission would not have the power to
grant a "waiver" of the Section 1103(g) restrictions because such are not authorized by
the Ethics Act.
In response to your fourth question, it is not for the State Ethics Commission to
enforce a Management Directive. However, the Ethics Act provides as follows:
Section 1109. Penalties
(b) ...Any person who violates the provisions of section 1103(d)
through (j)... commits a misdemeanor and shall, upon conviction, be
sentenced to pay a fine of not more than $1,000 or to imprisonment for not
more than one year, or both. 65 Pa.C.S. Section 1109(b).
In response to your fifth and sixth questions, Section 1103(g) would not prohibit
you from interfacing with architects who would be bidding on DOC contracts or working
with general contractors who would be doing business with DOC. However, you are
cautioned that to the extent your activities relative to such architects or general
contractors would constitute prohibited representation before DOC, you would be
transgressing Section 1103(g) of the Ethics Act. As outlined above, examples of
prohibited representation would include, but not be limited to, making personal
appearances before DOC and submitting written documents containing your name to
DOC such as bids or contract proposals.
In response to your seventh question, Section 1103(g) of the Ethics Act would
prohibit you from contracting with a business to perform work within DOC as such would
necessarily involve you representing a person before DOC.
In response to your eighth question, Section 1103(g) of the Ethics Act would not
prohibit you from going to work for a company that is already doing business with DOC.
However, to the extent your job responsibilities would require you to interact with DOC
in a manner that would constitute prohibited "representation," your performance of such
activities would be contrary to Section 1103(g) of the Ethics Act.
Swartz, 05 -608
December 22, 2005
Page 6
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 official /public employee
and no public official /public employee shall solicit or accept anything of monetary value
based upon the understanding that the vote, official action, or judgment of the public
official /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 Assistant Director and Operations
Manager for the Department of Corrections ( "DOC "), Bureau of Correctional Industries,
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 DOC, you became a "former public employee" subject to Section 1103() of
the Ethics Act. The former governmental body would be DOC in its entirety including,
but not limited to, the Bureau of Correctional Industries.
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.
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