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HomeMy WebLinkAbout85-561 ArtzMr. Charles 1. Artz Legislative Services Office Senate of Pennsylvania Room B -51 Main Capitol Building Harrisburg, PA 17120 -0030 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 July 2, 1985 ADVICE OF COUNSEL 85 -561 Re: Former Public Employee; Section 3(e), Legislative Assistant Dear Mr. Artz: This responds to your letter of June 27, 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 Senate of Pennsylvania. Facts: You are currently employed by the Senate of Pennsylvania, in the Legislative Services Office as a Legislative Assistant. In this capacity, you are responsible for handling requests from the members of the Majority Caucus in the Senate, answering correspondence, attending meetings as well as participating in any special projects to which you are assigned. You will be terminating this employment in order to accept employment as a Governmental Affairs Consultant for the Pennsylvania Chiropractic Society. As part of your responsibility, you will be lobbying in the Pennsylvania Senate and House of Representatives. You have requested to know what, if any, restrictions may be imposed upon your activity under the State Ethics Act. We note that the office of Legislative Services appear to be administratively situated within the office of the President Pro Tempore. 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. Mr. Charles J. Artz July 2, 1985 Page 2 As a Legislative Assistant for the Legislative Services Office, you are 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. 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 Frymiare, 82 -564; Sarne, 82 -565; Evans, 84 -589. 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 Pennsylvania Senate. 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 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 appears to have been limited to the Legislative Services Office (LSO) and to the Office of the President Pro Tempore within which the LSO is situated. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office of the President Pro Tempore and the Legislative Services Office, hereinafter the Offices. Therefore, within the first year after you would leave the Senate, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Offices. See Rouch, 85 -519. We do note that you have not indicated the nature or extent of any of the special projects in which you may have been involved. In the event that you had a specific responsibility to a particular member of the Senate or in relation to Mr. Charles J. Artz July 2, 1985 Page 3 any specific legislative project, additional limitations may be applicable. In such a situation, you may wish to seek the further advice of the State Ethics Commission. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Offices. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Senate. 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 Offices, including, but not limited to, negotiations or renegotiations on contracts with the Offices; 2. Attempts to influence the Offices; 3. Participating in any matters before the Offices over which you had supervision, direct involvement, or responsibility while employed by the Senate; 4. Lobbying, that is representing the interests of any person or employer before the Offices in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. fir. Charles J. Artz July 2, 1985 Page 4 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 Offices, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Senate, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Offices so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Offices. Once again, however, your activity in this respect should not be revealed to the Offices. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Offices 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 Offices 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 a Legislative Assistant, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Pennsylvania Senate, 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. The governmental body with which you have been associated, includes the Office of the President Pro Tempore and the Legislative Services Office. 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. Mr. Charles J. Artz July 2, 1985 Page 5 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 Sincer John J. tino Gener• Counsel