Loading...
HomeMy WebLinkAbout85-543 ShueyMs. Charlotte S. Shuey 2247 Adrian Street Harrisburg, PA 17104 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 May 3, 1985 ADVICE OF COUNSEL 85 -543 Re: Former Public Employee; Section 3(e), Department of Labor and Industry Dear Ms. Shuey: This responds to your letter of March 28, 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 Labor and Industry. Facts:- You have indicated that effective April 3, 1985, you retired from your position as an Unemployment Compensation Appeals Referee in the Department of Labor and Industry, hereinafter the Department. In that position, you were generally responsible for conducting hearings on original appeals from the Bureau of Unemployment Compensation Benefits and Allowances, hereinafter the Bureau, and in cases remanded by the Unemployment Compensation Board cf Review, hereinafter the Board. We note that the Bureau is administratively within the Department's Office of Employment Security, hereinafter the Office. As part of your duties you were responsible for reviewing testimony and evidence for the purpose of making findings of fact and reasons, therefore, in accordance with applicable precedent and procedural requirements. You also had the authority to determine the issues to be ruled upon, to issue subpoenas and compel the attendance of witnesses, to interpret policy and draft decisions. You also would remand to the Bureau cases which required further consideration at that level, and you communicated with the Central Office of the Board and the Bureaus and parties involved in proceedings as needed. Ms. Charlotte S. Shuey May 3, 1985 Page 2 Finally, you were responsible for planning, organizing and supervising the activities of the Referee's Office so as to establish adequate recordkeeping, allocate duties to assigned personnel, conduct comprehensive training programs for personnel and generally insure the effective operation of the Office of the Referee. In relation to your recent retirement, you ask what, if any, restrictions are placed upon your future employment under the Ethics Act. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As an unemployment Compensation Appeals Referee for the Board, within the Department, you are to be considered a "public employee" within the definition f that term as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you have 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. See Wells 81 -010; Silverstine, 82 -530. Consequently, upon termination of this employment, 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. - Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the Department. 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 to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics tiiFirssion, 435 A.2d 940 (1981). Ms. Charlotte S. Shuey May 3, 1985 Page 3 From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been in relation to the Board and the Office, including all bureaus and divisions within the Office. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Board, the Office and the bureaus and divisions within the Office including the Bureau of Unemployment Compensation Benefits and Allowances. Therefore, within the first year after you would leave the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Board and the Office. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Board, the Office and the Bureaus and Divisions within the Office. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the - -Department. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction 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 associated, (that is the Board, and the Office as previously set forth), including, but not limited to, negotiations or renegotiations on contracts with these governmental bodies; Ms. Charlotte S. Shuey May 3, 1985 Page 4 2. Attempts to influence these governmental bodies; 3. Participating in any matters before the aforementioned governmental bodies over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or employer before the above identified governmental bodies in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Board, the Office and the bureaus and divisions within the Office, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the .Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Board, and the Office generally, so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Board, and the Office. Once again, however, your activity in this respect should not be revealed to the Board, and the Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Board, and the Office to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Board, and the Office your representation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Conclusion: As an Unemployment Compensation Appeals Referee, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department, 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. These restrictions would apply to the governmental body with which you have been associated, which includes: the Unemployment Compensation Board of Review, the Office of Employment Security, the divisions and bureaus within the Office of Employment Security. Ms. Charlotte S. Shuey May 3, 1985 Page 5 Further, should you terminate your employment or service, as outlined above, you are reminded that the Ethics Act also requires you to file a Statement of Financial Interests 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. JJC /sfb Si ncerely, ohn J. Co no General •unsel e•7'