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HomeMy WebLinkAbout85-511 MartiniMr. Gregory M. Martini 300 Locust Court 212 Locust Street Harrisburg, PA 17101 Dear Mr. Martini: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 February 6, 1985 ADVICE OF COUNSEL 1. file petitions with the Board of Appeals? 85 -511 Re: Former Employee, Department of Revenue, Section 3(e) This responds to your letter of January 28, 1985, in which you requested advice from the State Ethics Commission. Issue: What restrictions are placed upon you as a former public employee of the Department of Revenue under Section 3(e) of the Ethics Act. Specifically, you ask if you may: 2. represent clients and attend hearings before the Board of Appeals on new matters in which you had no prior involvement? 3. practice before the independent Board of Finance and Revenue which is under the jurisdiction of the Treasury Department? 4. file petitions at the Board of Finance and Revenue? 5. represent clients before the Board of Finance and Revenue? Facts: Pursuant to the information provided you were employed as a member of the Pennsylvania Department of Revenue, Board of Appeals, hereinafter, the Board. The Board is responsible for receiving, hearing, considering, and rendering decisions in all administrative appeals filed with the Department of Mr. Gregory M. Martini February 6, 1985 Page 2 Revenue, hereinafter the Department, involving various taxes and rebates. As a member of the Board you directly supervised a number of hearing examiners, an attorney examiner and a 1c3a1 assistant. You were responsible for reviewing and investigating matters assigned to you. Additionally, you were authorized to make and approve recommendations regarding decisions. Pursuant to the job description for your position "work was performed with considerable independence consistent with applicable laws, policies and regulations related to the tax entities being processed. "The description further indicated that you utilized "sound judgement in the interpretation and application of evaluating individual tax cases submitted for appeal." On January 17, 1985 you terminated your employment with the Board and assumed a postion with the accounting firm of Ernst and Whinney. Discussion: There is no doubt in light of the functions that you performed that as a member of the Board you were a public employee during your tenure with the Department. Therefore, upon termination of this employment with the Department, you became a "former public employee." As a "former public employee" your conduct must conform to the requirements of Section 3(e) of the Ethics Act as set forth below: 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(e). As a former public employee, you are for the first calendar year following your termination of employment, to refrain from "representing" any person with or without compensation before those governmental bodies with which you were associated while employed by the Department. Generally, the term representation, as set forth in Section 3(e) includes such activities as: 1. Personal appearances before the governmental body or bodies with which you have been associated. 2. attempts to influence the body or bodies with which you have been associated; Mr. Gregory M. Martini February 6, 1985 Page 3 3. participation in any manner before these bodies in a case or matter over which you had supervision, direct involvement, or responsibility while employed by the Department of Revenue; and 4. lobbying, that is, representing the interests of any person before the governmental body or bodies with which you have been associated in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In addition, the regulations of the Ethics Commission further define representation as: 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. Thus, the activities outlined above, would be specifically prohibited pursuant to Section 3(e) of the Ethics Act with respect to the governmental body or bodies with which you are deemed to have been associated while serving with the Commonwealth. It should be noted that mere act of preparing and signing documents with your own name or having your name appear as the person who will serve in regard to a particular matter has been held to constitute representation in violation of Section 3(e). See Kilareski, 80 -054. The Commission has also specifically ruled that the filing of documentation i.e. petition, legal brief or otherwise relative to the merits of any tax appeal would constitute representation under the Ethics Act. See Wagner, 80 -042. Additionally, where you know "o or should know that such a submission or proposal that you might make to a entity other than that body or those bodies with which you are deemed to have been associated would be reviewed by the body or bodies with which you have been associated, your name should not appear on such a proposal. Anderson, 83 -014. While the above - referenced restrictions apply to you pursuant to Section 3(e) of the Ethics Act vis -a -vis that governmental body or bodies with which you have been associated, you may, nevertheless work for an employer, such as Ernst and Whinney, and may engage in the following activities: Mr. Gregory M. Martini February 6, 1985 Page 4 a. You may administer rather than negotiate or re- negotiate any contract that exists or is to be awarded to your future employer so long as the contract or sub - contract is awarded or entered into without the inclusion of your name as noted above. b. You may make general informational inquiries of the governmental body or bodies with which you have been associated so long as there is no attempt to influence those bodies. c. You may utilize the knowledge and expertise gained during your tenure as a public employee so long as you do not use any confidential information gained during your service as a public employee. d. You may appear and represent any person on behalf of any client or new employer before any entity or governmental body except that governmental body or bodies with which you are deemed to have been associated. Turning now to the specific questions raised in your request for advice, there can be no doubt that based upon the foregoing, the filing of petitions with the Board and the representation of clients before the Board are in fact, the type of activities restricted under Section 3(e). To be distinguished, however, from the Board of Appeals is the Board of Finance and Revenue. The Board of Finance and Revenue is a departmental administrative board within the Pennsylvania Treasury Department. 71 P.S. §62. It is a separate entity from the Department of Revenue, is independent from the Department of Revenue and is composed of five state officials, one of which happens to be the Secretary of the Department of Revenue. However, beyond this connection, neither the Board nor the Department in general, has responsibility or control over the actions of the Board of Finance and Revenue. Accordingly, consistent with these facts and our prior precedent, we conclude that as an employee of the Board within the Department of Revenue, you should not be considered to have been associated with the Board of Finance and Revenue. Accordingly, you would face no restrictions under Section 3(e) against representing any person before the Board of Finance and Revenue. Conclusion: You became a "former public employee" subject to the restrictions of the Ethics Act and your conduct as such, must conform to the requirements of the Ethics Act as outlined in this Advice. Specifically, you may not appear or represent any person, new employer, etc., with or without compensation for the one -year period beginning January 17, 1985, through January 17, 1985, before the Board of Appeals within the Department of Revenue. There are no restrictions on your appearance or representation of persons before the Board of Finance and Revenue. Mr. Gregory M. Martini February 6, 1985 Page 5 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 servaco lf this Advice pursuant to 51 Pa. Code 2.12. JJC /sfd Sincere y , John JB Con' ino General Counsel s" c