HomeMy WebLinkAbout88-532 SnyderDear Mr. Snyder:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 24, 1988
Mr. Steve Snyder 88 -532
Cellular One of Harrisburg
2405 Park Drive
Suite 200
Harrisburg, PA 17110
Re: Former Public Employee; Section 3(a), Executive Director of
the Senate Law and Justice Committee
This responds to your letter of February 12, 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 Senate Law and Justice Committee in the office
of Senator John Shoemaker.
Facts: You state that from June 1984 through June 1987 you
served as Administrative Assistance to Senator Shoemaker with
responsibilities consisting of answering constituent
correspondence and inquiries, attending meetings on behalf of the
Senator and writing press releases and speeches as well as
certain supervisory responsibilities. Prior to that time from
November 19, 1981 to June 1984 you advise that you performed
similar duties for Senator Tim Schaffer. You then note from June
1987 throught January 1988 you served as Executive Director of
the Senate Law and Justice Committee and reported directly to
Senator Shoemaker. You further state that your responsibilities
as Executive Director consisted of advising the Senator as to
legislation dealing with the committee, setting up committee
meetings and public hearings to consider business before the
committee, meeting with lobbyist and public interest groups, and
lastly advising Senator Shoemaker on how legislation before the
committee would affect the respective groups. After noting that
on January 27, 1988 you left your position as Executive Director
to take a sales position with Cellulor One of Harrisburg selling
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car phones, you request advice under the Ethics Act as to what
restrictions would be imposed upon you in your new employment.
As Administrative Assistant to Senator Shoemaker and
Executive Director of the Senate Law and Justice Committee, 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.
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 maer 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 office of Senator Shoemaker and the
Senate Law and Justic Committee. 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 "government 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 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 the office of Senator John Shoemaker and the Senate
Law and Justice Committee. Thus, the "governmental body" with
which you have been "associated" upon the termination of your
employment would be the office of Senator John Shoemaker and the
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Senate Law and Justic Committee. 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 office of Senator
Shoemaker for the period up to and including June 1988 and the
Senate Law and Justice Committee for the point up to and
including January 27, 1989.
The Ethics Act would not affect your ability to appear
before agencies or entities other than with respect to the office
of Senator John Shoemaker and the Senate Law and Justice
Committee. Likewise, there is no general limitation on the type
of employment in which you may engage, following your departure
from the Senate. 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, 83 -014, Zwikl,
85 -004.
In respect to the one year representation restriction the
Ethics Commission has promulgated regulations to define
"representation" as follows:
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating conracts, lobbying,
and submitting bid or contract proposals which are
signed by or contain the name of the former public
official or public employee. 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 office
of Senator John Shoemaker and the Senate Law and Justice
Committee, including, but not limited to, negotiations or
renegotiations on contracts with the office of Senator John
Shoemaker and the Senate Law and Justice Committee;
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2. Attempts to influence the office of Senator John
Shoemaker and the Senate Law and Justice Committee;
3. Participating in any matters before the office of
Senator John Shoemaker and the Senate Law and Justice Committee
over which you had supervision, direct involvement, or
responsibility while employed by the Senator;
4. Lobbying, that is representing the interests of any
person or employer before the office of Senator John Shoemaker
and the Senate Law and Justice Committee An 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 office of Senator John
Shoemaker and the Senate Law and Justice Committee, consititutes
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. (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 office of
Senator John Shoemaker and the Senate Law and Justice Committee.
You may, assist in the preparation of any documents
presented to the office of Senator John Shoemaker and the Senate
Law and Justice Committee so long as you are not identified as
the preparer. You may also counsel any person regarding that
person's appearance before the office of Senator John Shoemaker
and the Senate Law and Justice Committee. Once again, however,
your activity in this respect should not be revealed to the
office of Senator John Shoemaker and the Senate Law and Justice
Committee. Of course, any ban under the Ethics Act would not
prohibit or preclude you from making general informational
inquiries of the office of Senator John Shoemaker and the Senate
Law and Justice Committee 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 know to the office of John
Shoemaker and the Senate Law and Justice Committee 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
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by the Ethics Act. See Dalton Opinion 80 -056 and Beaser Advice
81 -538.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Act; the applicability of any other
statute, code, ordinance, regulation or other code of conduct
other than the Ethics Act has not been considered in that they do
not involve an interpretation of the Ethics Act.
Additionally, it is note, that Section 403(b) of the State
Ethics Act would prohibit any public employee or public official
from accepting a position of employment if said position has been
offered based upon the understanding that the official conduct of
the employee or official, while working for his former
governmental body influenced by _such offer. See 65 P.S.
403(b). c :.._ r
Conclusion: As a Administrative Assistance to Senator John
Shoemaker and Executive Director of the Senate Law and Justice
Committee, you are to be considered a "public employee" as
defined in the Ethics Act. Upon termination of your service with
the office of Senator John Shoemaker and the Senate Law and
Justice Committee, 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. Your governmental body for the
purpose of the one year representation restriction is the office
of Senator John Shoemaker for the point up to and including June
1988 and the Senate Law and Justice Committee for the period up
to and including January 27, 1989. Lastly, the propriety of your
proposed conduct has only been addressed under the Ethics Act.
This letter is a public record and will be made available as
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 formal Opinion from the
Commission will be issued.
411
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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.
VJD /nb
Sincerely,
rn
Vincent Dopko
General Counsel