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HomeMy WebLinkAbout88-518 BinnsJames A. Binns, P. A. 300 Walnut Street Philadelphia, PA 19106 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 February 24, 1988 ADVICE OF COUNSEL 88 -518 Re: Former Public Official; Section 3(e), Pennsylvania Athletic Commission Dear Mr. Binns: This responds to your letter of January 19, 1988, 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 Athletic Commission and what filing responsibilities you have as to Statements of Financial Interests under both the State Ethics Act and Governor's Code of Conduct. Facts: In your letter you state that you resigned as Chairman of the Pennsylvania Athletic Commission, hereinafter Commission, on December 21, 1987. You then ask what responsibilities you have regarding the filing of the Statement of Financial Interests under the State Ethics Act as well as the Governor's Code of Conduct. Discussion: As a Chairman for the Commission, you are to be considered a "public official" 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 position, 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. Consequently, upon termination of this employment, you would become a "former public official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: James A. Binns, P. A. February 24, 1988 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. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working with the Commission. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. 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 Opinion, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 T1981). 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 the Commission. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Commission. Therefore, within the first year after you would leave the Commission, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis the Commission. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Commission. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Commission. It is noted, 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 Opinion, 83 -014; Zwikl Opinion, 85 -004. James A. Binns, P. A. February 24, 1988 Page 3 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 Commission), including, but not limited to, negotiations or renegotiations of contracts with the Commission; 2. Attempts to influence the Commission; 3. Participating in any matters before the Commission over which you had supervision, direct involvement, or responsibility while employed by the Commission; 4. Lobbying, that is representing the interests of any person or employer before the Commission in relation to legislation, regulations, etc. See Russell Opinion, 80 -048 and Seltzer Opinion, 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 Commission, constitutes an attempt to influence your former governmental body. See Kilareski Opinion, 80 -054. Therefore, within the first year after you leave the Commission, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal , even if submitted to or reviewed by the Commission, is not prohibited as "representation." See Kotalik Opinion, 84 -007. You may, assist in the preparation of any documents presented to the Commission so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Commission. Once again, however, your activity in this respect should not be revealed to the Commission. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Commission to James A. Binns, P. A. February 24, 1988 Page 4 secure information which is available to the general public. See Cutt Opinion, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Commission 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 Opinion, 80 -056 and Beaser Advice, 81 -538. Section 404(a) of the Ethics Act provides, in part: Section 4. Statement of financial interests required to be filed. (a) Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. 65 P.S. 404(a). Under the above provision of law, since you resigned as Chairman of the Commission as of December 21, 1987, it is necessary for you to file the Statement of Financial Interests for the calendar year 1987 on or before May 1, 1988. Further, you are required under the above provision to also file a Statement of Financial Interests for the calendar year 1988, which would be for the year after you left your position. Finally, advice as to your responsibilities under the Governor's Code of Conduct can not be addressed in this advice since the Governor's Code of Conduct does not involve an interpretation of the State Ethics Act. Lastly, the propriety of your proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, regulation, or ordinance or other code of conduct other than the Ethics Act has not been considered. Conclusion: As a Commission Chairman, you are to be considered a "public official" as defined in the Ethics Act. Upon termination of your service with the Commission, you would become a "former public official" 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. Your governmental body for the purpose of the one year representation restriction is the Commission. Further, as a public employee, you are required to f i l e the Statement of Financial Interests for each preceding calendar year of your governmental service as well as for the year after you leave your public position. Lastly, the propriety of your conduct has only been addressed under the Ethics Act. James A. Binns, P. A. February 24, 1988 Page 5 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. Sincerely, Vincent J. Dopko General Counsel