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HomeMy WebLinkAbout85-505 Yenchkot iiir 3 "i q: : Bi i FLrrisburg, 1710 January 8, 1985 ADVICE OF COUNSEL Suzanne Yenchko, Director 85 -505 of Natural Resources Pennsylvania Chamber of Commerce 222 North Third Street Harrisburg, PA 17101 Re: Former Public Employee; Section 3(e), Legislative Research Analyst Dear Ms. Yenchko: This responds to your letter of January 5, 1985 , in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the House of Representatives, Consumer Affairs Committee. Facts: From March, 1983 to December 31, 1984 you were employed by the House of Representatives, Consumer Affairs Committee, hereinafter the Committee, as a legislative research analyst. In this capacity you worked for Representative Edward F. Burns, Jr. who was the minority chairman of that Committee and for Otis W. Littleton, Director of the Republican research staff, hereinafter, the Staff. As a legislative research analyst working in these capacities you were required to do summaries and analysis of bills, engaged in drafting legislation, when requested, researching constituent problems and drafting letters of reply thereto, researching laws of other states, attending committee meetings and public hearings and doing other general staff work as requested. As of January 1, 1985 you have been employed as the Director of Natural Resources for the Pennsylvania Chamber of Commerce, hereinafter the Chamber. This new job includes keeping track of all energy and environmental legislation; lobbying on energy and on environmental issues; staffing two Chamber committees on energy and on environment; and being a resource person to the Chamber members on issues discussed by these committees. Ms. Suzanne Yenchko January 8, 1985 Page 2 Discussion: As a legislative research analyst for the House of Representatives we will assume that you were to be considered a "public employee" within the definition of that term is set forth in the Ethics Act and the regulations of this Commission. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Pa. Code 1.1. Consequently, upon termination of this employment or service , you became a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Initially, to answer your request we must identify the "governmental body" or bodies with which you were associated while working with the House. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office or employment extends not to those entities where he may have had contact or acquired acquaintances and colleagues but only to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics old mmission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Committee, the office of Representative Burns, hereinafter collectively referred to as the Office, and the Staff. Thus, the "governmental body" or bodies with which you must be deemed to have been "associated" upon termination of your employment or service with House of Representatives would be the Committee, the Office and the Staff. Therefore, within the first year after you would leave the House of Representatives, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Committee, the Office, and the Staff. Ms. Suzanne Yenchko January 8, 1985 Page 3 The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Committee, the Office, and the Staff. Likewise, there is no general restriction against your seeking employment and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure from the House of Representatives. You may not, however, "represent" any new employer or client before the Committee, the Office, and the Staff as described more fully below for the first year after you leave public employment. The Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person including but not limited to the following activities: personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been deemed to have been associated, that is the Committee, the Office, and the Staff , including, but not limited to, negotiations or renegotiations on contracts with the Committee, the Office, and the Staff; 2. Attempts to influence the Committee, the Office, or the Staff; 3. Participating in any matters before the Committee, the Office, or the Staff on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by or serving the House of Representatives; 4. Lobbying, that is representing the interests of any person or employer before the Committee, the Office, or the Staff in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. Ms. Suzanne Yenchko January 8, 1985 Page 4 With respect to this last specific item, that is, lobbying, you should also be advised that we have issued advices which indicate that, based upon Commission opinions, you should not participate in any particular matter over which you have supervision, direct involvement or responsibility while employed by the House. Specifically, while you may deal in general with legislation and members of the legislature, except as outlined above, you should avoid any appearance of a conflict of interest by not participating in lobbying, as to any matter, case or particular hill over which you have had supervision, direct involvement, or responsibility while employed as a legislative research analyst as outlined above. See Adler, 79 -043 and Masters, 81 -506 and supplement thereto. In light of the general definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the Committee, the Office, or the Staff constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the House of Representatives, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the Committee, the Office, or the Staff or which will be reviewed by the these bodies. You may, even under the above restrictions, assist in the preparation of any documents presented to the Committee, the Office, or the Staff and assist in the preparation associated with appearances to be made by a person, other than yourself, before the Committee, the Office, or the Staff so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Committee, the Office, or the Staff to secure information which is available to the general public. See Cutt, 79 -023. Conclusion: As a legislative research analyst , you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the House of Representatives, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Ms. Suzanne Yenchko January 8, 1985 Page 5 Further, upon termination of your employment or service as outlined above, you are reminded that the Ethics Act also requires that as a puhlic employee you must file a Statement of Financial Interests for each year in which you hold the position described above, and for the year following your termination of service. Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. SSC /sfd Sincerely, 't: andra S. tianson General Counsel