HomeMy WebLinkAbout85-513 AlderetteMr. Barry L. Alderette
300 Park Avenue
Beaver Falls, PA 15010
Re: Representation, Section 3(e)
Dear Mr. Alderette:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
PO. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TE;_EPI-IONE (717) 733 -1610
February 7, 1985
ADVICE OF COUNSEL
85 -513
This responds to your letter wherein you requested the Advice of the
State Ethics Commission.
Issue: What restrictions are imposed upon you under the Ethics Act following
your departure from service in the Pennsylvania House of Representatives.
Facts: Pursuant to the information forwarded to the State Ethics Commission
you are a former member of the Pennsylvania House of Representatives. You
served in that body until the end of the 1984 session.
As a member of the House of Representatives you served on the
Transportation, Urban Affairs and Insurance Committees. You were also a
member of the Steel Caucus and the Committee to investigate compliance with
the Steel Products Procurement Act.
Discussion: As an elected member of the House of Representatives you were a
"pubic official" as that term is defined in the Ethics Act. See Section 2 of
the Ethics Act, 65 P.S. 402. As such, upon leaving office you became a
"former public official." Your conduct therefore will be governed by Section
3(e) of the Ethics Act as follows:
Mr. Barry L. Alderette
February 7, 1985
Page 2
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 official, the restrictions which you will be required
to observe are limited to the one -year period following the end of your term
of office. This is one calendar year and the restrictions to be discussed
below should be observed during that entire period. The Ethics Act imposes no
specific restrictions on the type of employment you may accept or the
occupation which you may pursue following your service with the Commonwealth.
Rather, as it can be seen from Section 3(e), the Ethics Act restricts your
activities insofar as they may constitute "representation" before the
"governmental body" with which you have been associated.
First, we should discuss the scope and extent of the term "governmental
body" with which you may have been "associated" while serving with the House
of Representatives. The Commissionn has previously reviewed this question and
issued Opinions which indicate that the "governmental body" with which a
member of the House is associated includes the House itself, any entity on
which the member served as ex officio member and any entity on which the
member served by virtue of legislative appointment. See Seltzer, 80 -004;
Goebel, 80 -045; Geesey, 80 -046; and Geesey, 80 -057.
Based upon the foregoing the restrictions outlined in Section 3(e) of the
Act apply to your "representation" of any person or entity before the House of
Representatives and the Committees of which you were a member.
The Commission has also had many opportunities to consider the scope and
nature of the term "representation." The Commission, in its regulations, has
defined the term "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.
Mr. Barry L. Alderette
February 7, 1985
Page 3
Further, opinions of the Commission indicate that the Commission has held
that the type of representation prohibited by Section 3(e) includes:
1. personal appearances before the governmental body with which you were
associated, in this case the House and the committees on which you
served (by virtue of your House membership). See Morris, 80 -039;
2. attempts to influence that governmental body;
3. participating in any manner before this body in any case or matter
over which you had supervision, direct involvement, or responsibility
while serving with the House;
4. lobbying, that is representing the interests of any person before
House to influence that body in relation to legislation,
regulations, etc.; and,
5. signing and submitting under your own name bids or proposals, as well
as listing your name as preparer or the person providing technical
assistance for the proposals that are submitted to the body with
which you were associated. See Dalton, 80 -056 and Kilareski,
80 -054.
Notwithstanding the aforementioned restrictions, Opinions of the
Commission indicate that a former public official may nevertheless engage in
the following activities;
A. You may appear in third forums such as state or federal court or
before any other governmental body other than the govrnmental body
with which you may have been associated;
B. You may make general informational inquiries of the governmental body
with which you have been associated if these inquiries are of the
same nature or similar to that made by the public.
C. You may utilize the knowledge and expertise gained during your tenure
as a public official except as set forth in numbers 1 through 5
above.
D. You may administer a contract that has been awarded or negotiated
between your former governmental body and any new employer or new
corporation as long as the contract was awarded in accordance with
the above restrictions (see No. 1 and No. 5 above, in particular),
and assuming that you have not attempted to negotiate or
re- negotiate the terms or conditions of the contract.
Mr. Barry L. Alderette
February 7, 1985
Page 4
Other than the foregoing there is no inherent restriction on the type of
employment that you may accept. Additionally, the restrictions outlined above
are personal to you and do not extend to any other members of any firm,
business, corporation, etc., with which you may be associated following your
departure from the House.
Conclusion: During the first (calendar) year folllowing your termination of
service with the Commonwealth you must observe the restrictions upon your
ability to "represent" any person before the governmental bodies with which
you have been associated as those terms and restrictions are outlined above.
Should you have any further specific questions about permissible or prohibited
conduct, please feel free to contact us again.
Also, as a "former public official" we remind you that you must file a
Financial Interest Statement for the year after you leave office.
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.
JCC /sfd
Sin Sinc gly,
John J. Contino
General v Coun sel