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HomeMy WebLinkAbout07-599 GERMANIOSusan J. Germanio, Esquire c/o Pennsylvania Coal Association 212 N. Third Street Harrisburg, PA 17101 Dear Ms. Germanio: ADVICE OF COUNSEL December 12, 2007 07 -599 This responds to your letters of October 23, 2007, and November 5, 2007, 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., would restrict the future lobbying- related activities of an individual who, prior to retiring from Commonwealth employment in November 2006, served as Legal Counsel to the Minority Leader of the Pennsylvania House of Representatives ( "House "). Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post - employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. You retired from employment with the House on November 22, 2006, following 35 years of service. From 1996 until your retirement, you served as Legal Counsel to the House Minority Leader (now Majority Leader). Your duties included the following: (1) Representing the caucus or individual House Members at meetings with Executive Branch staff or at meetings of boards or commissions to which Members were appointed, and serving as an alternate on the Mining and Reclamation Advisory Board and the Low Level Radioactive Waste Advisory Committee of the Commonwealth of Pennsylvania Department of Environmental Protection; (2) Communicating with constituents regarding problems with departments of the Executive Branch and working with legislative liaisons for such departments on a regular basis; Germanio, 07 -599 December 12, 2007 Page 2 (3) Drafting legislation and amendments, particularly legislation regarding environmental and social welfare issues, and advising the Leader regarding such legislation and amendments; (4) Conferring with staff of the Pennsylvania Senate and the Executive Branch regarding legislation, and working with Senator Barry Stout on local issues; (5) Substituting for other staff on the floor of the House as needed during voting sessions, and assisting with research on procedural questions and prior debate on recurring issues; and (6) Assisting caucus counsel with litigation brought against House Members by performing background research and reviewing motions and briefs. Effective November 5, 2007, you became employed as the Director of Regulatory Affairs with the Pennsylvania Coal Association. You state your understanding that the Ethics Act would prohibit you from lobbying Members of the House for one year following termination of employment with the House. You seek guidance as to whether the Ethics Act would impose any additional restrictions or prohibitions upon you with regard to your ability to participate in lobbying - related activities in the Executive and Legislative Branches of Pennsylvania State government. 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, this 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. It is further noted that, pursuant to the same aforesaid Sections of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent you have inquired as to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent you have inquired as to future conduct, your inquiry may and shall be addressed. In the former capacity as Legal Counsel to the Minority Leader of the House of Representatives, you would be considered a "public employee" as that term is defined by the Ethics Act. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. This conclusion is based upon the submitted facts, which when reviewed on an objective basis, indicate clearly that in your former position, the power existed to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) 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." Germanio, 07 -599 December 12, 2007 Page 3 Section 1103(g) of the Ethics Act provides as follows: § 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 restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that you terminated service with the House on November 22, 2006, you are advised that the restrictions of Section 1103(g) of the Ethics Act do not currently apply to you. The only provisions of the Ethics Act that apply to you now are Sections 1103(b) and 1103(c), which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer or give to a public official /public employee anything of monetary value 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 Legal Counsel to the Minority Leader of the Pennsylvania House of Representatives "House "), you would be considered a "public employee" as that term is defined byte Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Upon termination of service with the House, you became a "former public employee." The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that you terminated service with the House on November 22, 2006, the restrictions of Section 1103(g) of the Ethics Act do not currently apply to you. The only provisions of the Ethics Act that apply to you now are Sections 1103(b) and 1103(c), which apply to everyone. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Germanio, 07 -599 December 12, 2007 Page 4 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, Robin M. Hittie Chief Counsel