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Home My WebLink About85-519 RouchMr. Jeffrey D. Rouch 2 322 Hoffer Street Harrisburg, PA 17103 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 March 11, 1985 ADVICE OF COUNSEL 85 -519 Re: Director, Office of Legislative Research; Section 3(e) Representation Restrictions Dear Mr. Rouch: This responds to your letter of February 7, 1985, wherein you requeted the advice of the State Ethics Commission. Issue: Whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Office of Legislative Research, in the Pennsylvania Senate. Facts: You have indicated that you have been employed in the President Pro Tempore's Office of Legislative Research, hereinafter, OLR, in the Pennsylvania Senate from January of 1983. In January, 1985, the name of this office was changed to the Policy Development and Research Office, hereinafter, the Office. You indicate that the general functions of this new Office are still being formulated but generally, you serve as the Deputy Director for Research. In that position you are responsible for providing background information on issues for speeches, meetings and legislative initiatives. With regard to the OLR, you were the director responsible for overall office administration, coordinating and editing the work of analyst, preparing speeches, and articles at the direction of the President Pro Tempore. Your description of both OLR and the Office indicate that both entities operate under the direction of and as part of the Office of the President Pro Tempore. Your description also indicates that neither OLR nor the Office was or is involved in policy making decisions or recommendations. Jeffrey D. Rouch March 11, 1985 Page 2 You are currently considering seeking new employment in the private sector and as a result you ask, what, if any, restrictions are placed upon you under the State Ethics Act. Discussion: At the outset, it must be noted that you are currently employed in the Office. Because the functions and responsibilities of the Office are still being defined, this advice is issued only in relation to your employment as it currently exists and as you have described it. If, by the time you terminate your employment with the Office, the nature and scope of the functions of the Office or of your specific position should be altered in any significant manner, you may need to seek the further advice of the Commission. Additionally, it is noted that the jurisdiction of the Ethics Commission is limited to the determination of an individual's duties within the purview of the Ethics Act. As such, the Commission may not consider or offer advice with relation to any other code of conduct, statute, rule or regulation. As a Deputy Director of Research in the Office and as the Director of OLR, you are to be considered a public employee within the meaning of the State Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon the description of your positon and upon prior Commission opinions regarding similar positions. These opinions have generally held that research analysts, staff advisors, irrespective of title who preform a search, or legal counseling function involving legislative matters are public employees within the purview of the Ethics Act. See opinion 79 -010, Ewing,; 80 -582, Hussie, 84 -589, Evans; and 84 -609, Myers. Having determined that you are a public employee, the Ethics Act in Section 3(e) does impose some restrictions on the activities of "former public employees." See 65 P.S. 403(e). Specifically, the Ethics Act precludes "former public employees" from representing any person before the governmental body with which they had been associated for a period of one year after they leave that governmental body. The question, in your case, is the extent of the "governmental body" with which you have been associated while employed with the OLR and the Office. In this respect, the Commission has determined that the scope of a person's "governmental body" should be as broad as is necessary to define those entities with which the individual has some influence, responsibility, supervision, or control. See opinions 79 -010, Ewing; 79 -044 Seltzer and Kur v. Commonwealth of Penns lvania State Ethics Commission, 435 A.ca s40. ( • Jeffrey D. Rouch March 11, 1985 Page 3 From the description and analysis of your duties and responsibilities as set forth in your letter, your jurisdiction, responsibility, influence and control appear to involve the Office of the President Pro Tempore generally, (to whom you were directly responsible), and in particular the OLR, and the Office. Therefore, within the first year after you would leave your current employment, Section 3(e) of the Ethics Act would restrict your activities, insofar as it constituted representation, before the aforementioned entities. (we realize that OLR is no longer in existence and that the Office is generally one and the same as OLR. The distinction is made herein, however, in light of the fact that the Office is still in a developmental stage). It should be additionally noted that if, in your position, you had any influence with regard to a committee of the Senate the 3(e) restrictions would equally apply in reference thereto. We will assume, however, for the purpose of this advice that you possessed no such influence. With regard to what constitutes representation the Commission has had various opportunities to define this term. Generally, the regulations of the Ethics Commission provide that: 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" to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, including, but not limited to, negotiations or renegotiations on contracts; 2. Attempts to influence that governmental body; 3. Participating in any matters before that governmental body on any case, matter, or contract over which you had supervision, direct involvement, or responsibility. 4. Lobbying, that is representing the interests of any person or employer before that governmental body in relation to legislation, regulations, etc. See Russell, 80 -048; Seltzer, 80 -044; and Masters, 81 -506. March Page 4 In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing a document, proposal or bid, may constitute prohibited representation. Additionally, "appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, that is submitted to or reviewed by your former governmental body, constitutes an attempt to influence that body. See Kilareski, 80 -054. You may, assist in the preparation of any documents presented to OLR, the Office or the President Pro Tempore, so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the above entities. Once again, however, your activity in this respect should not be revealed to such entities. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of your governmental body to secure information which is available to the general public. See Cutt, 79 -023. Conclusion: You are to be considered a "public employee" as defined in the Ethics Act. If you terminate your service with the President Pro Tempore's Office of Policy Development and Research you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. If this occurs, your conduct should conform to the requirements of the Ethics Act as outlined above. 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. JJC /sfd Sincerely, John entino General Counsel