HomeMy WebLinkAbout85-516 FreemanMs. Joyce S. Freeman
Bureau of Agricultural Development
Department of Agriculture
2301 N. Cameron Street
Harrisburg, PA 17110 -9408
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
February 22, 1985
ADVICE OF COUNSEL
85 -516
Re: Former Public Employee; Section 3(e), Bureau of Agricultural Development
Dear Ms. Freeman:
This responds to your letter of January 24, 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
Pennsylvania Department of Agriculture, Bureau of Agricultural Development,
hereinafter, the Department or Bureau.
Facts: You indicate that you are currently employed as Chief of the Economic
Development Division, Bureau of Agricultural Development within the
Pennsylvania Department of Agriculture. Effective February 19, 1985, you will
terminate your position with the Department and immediately assume the
position of Director of the Department of Economic Development for Dauphin
County, PA, hereinaftrer, the County. You have forwarded to the Commission a
detailed summary of the work that you will be performing in your new capacity
with the County. Generally, you will be responsible for developing a long
range program to attract and retain agriculture related industry for Dauphin
County.
In part, your work will include the representation, on behalf of the
County, of firms and businesses before the Department. You will also assume
administrative responsibility for the Pennsylvania Farm Market Loan Program .
and in this respect you will, be working closely with the Department. This
position is a County governmental position and you will be compensated as a
County employee. In your position with the Department you were responsible
Ms. Joyce S. Freeman
February 22, 1985
Page 2
for the state -wide development of programs providing for increased production
by agricultural oriented businesses. Your responsibilities also included
representation of the Department at meetings with other governmental
authorities and the administration of programs designed to use rural
rehabilitation funds.
Discussion: As Chief of the Economic Development Division, within the
Department /Bureau, you were to be considered a "public employee" within the
definition of that term as 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. This conclusion
is based upon your job description, which when reviewed on an objective basis,
indicates clearly that you had the power to take or recommend official action
of a non - ministerial nature with respect to contracting, procurement,
planning, inspecting or other activities where the economic impact is greater
than de minimus on the interests of another person.
Consequently, upon termination of this employment or service, you would
become 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.
Generally, in a request of this nature, the Commission would attempt to
identify with specificity the governmental body with which you were associated
while serving with the Department /Bureau. 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 the tenure of public
office, or employment extends to those entities where the person had
influence, responsibility, supervision, or control. See Ewing, 79 -010. See
also Kury v. Commonwealth of Pennsylvania, State Ethics Commission, 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 at the' minimum extended to the Bureau. This issue,
however, need not be addressed at any length in light of the particular
circumstances involved herein.
Ms. Joyce S. Freeman
February 22, 1985
Page 3
Generally, the restrictions set forth in the Ethics Act prohibiting
"representation" of persons before ones former governmental body must be
qualified by the definition set forth in the Act and the general intention
thereof. Person is defined in the State Ethics Act as a "business,
individual, corporation, union, association, firm, partnership, committee,
club or other organization or group of persons." See 65 P ..S. 402. However,
in the case where you are leaving your governmental employer or post and
assuming a new position with another level of government or governmental
entity, such as the County, the question is whether the same restrictions
against "representation" would be applicable.
In this respect the Commission has previously issued opinions which
indicate that the legislative intent was to prohibit the representation of
persons in circumstances that may give rise to a conflict, that is where the
government employee or official leaves the public sector and enters the
private sector. In two cases, Hagan, 84 -019 and Pinto, 84 -021, decided by the
Commission, former public employees were found to have no restrictions on
their ability to represent their new governmental -level employers or entities
before the body with which they had formerly been associated. The
Commissions' conclusion was primarily based upon the fact that where thc2
post - Commonwealth employment is with another governmental body or entity, the
concerns the legislature sought to address through Section 3(e) of the Ethics
Act were allayed or reduced because the new governmental employer could not be
expected to seek to influence the governmental body formerly served by these
individuals in the same manner as the non - governmental employer would.
Therefore, the Commission concluded that the restrictions of Section 3(e) of
the Ethics Act would not be applicable in such circumstance.
Similarly, applying these rulings to your case, we must conclude that
when you leave the Department /Bureau and secure employment with the County,
you would, of course, become a "former public employee." However, for the
reasons set forth in the opinions cited above, Section 3(e) of the Ethics Act
would not restrict your ability to represent the County before the
Department /Bureau.
Conclusion: Upon termination of your service with the Department /Bureau you
would become a "former public employee," but for the reasons set forth above,
Section 3(e) of the Ehtics Act does not restrict your ability to "represent"
the County before the Department /Bureau.
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.
Ms. Joyce S. Freeman
February 22, 1985
Page 4
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.
JJC /sfd
This letter is a public record and will be made available as such.
Sincerely,
John J ontino
Gen al Counsel