Loading...
HomeMy WebLinkAbout89-507 FodyMr. Kenneth W. Fody 120 Ardwick Terrace Lansdale, PA 19446 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 14, 1989 89 -507 Re: Former Public Employee; Section 3(e), Executive Assistant, Senate Dear Mr. Fody: This responds to your letter of January 10, 1989, 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. Facts: You state that you are currently employed by the Senate and in particularly under the supervision of Senator Edwin G. Holl wherein you work out of his Lansdale District Office. After stating that you will take a position with Alliance of American Insurers, you request advice as to what restrictions the Ethics Act would impose upon you resulting from your termination of state service. From the job classification specification which is incorporated herein by reference, it appears that you as Executive Assistant II, perform administrative work in assisting the Senator in discharging responsibilities, managing and serving as a staff advisor in the office, supervise personnel functions, supervise the review and processing of fiscal documents relating to caucus and committee affairs, provide liaison services with other legislative leaders and members and other governmental agencies, initiate, plan and organize legislative direction and policy development, meet with constituents and other representatives on behalf of the Senator and perform such other work as required. Mr. Kenneth W. Fody February 14, 1989 Page 2 Discussion: As a Executive Assistant II for Senator Holl, 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. 5402; 51 Pa. Code 51.1. 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 matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 5403. Initially, to answer your request the "governmental body" with which you were associated while working the Senate must be identified. 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 v. 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 Holl, hereinafter Office. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office. 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. Mr. Kenneth W. Fody February 14, 1989 Page 3 The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office. 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, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation 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 employee. 51 Pa. Code S1.1. 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 bodies with which you have been including, but not limited to, contracts with the Office; 2. Attempts to influence the Office; 3. Participating in any matters before the Office over you had supervision, direct involvement, or responsibility employed by the Senate; which while before the governmental body or associated, (that is the Office), negotiations or renegotiations on Mr. Kenneth W. Fody February 14, 1989 Page 4 4. Lobbying, that is representing the interests of any person or employer before the Office 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 Office, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 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, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Office so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office. Once again, however, your activity in this respect should not be revealed to the Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office to 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 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, Opinion 80 -056 and Beaser, Advice 81 -538. Additionally, it is noted 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, was influenced by such offer. See 65 P.S. §403(b). Mr. Kenneth W. Fody February 14, 1989 Page 5 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. Conclusion: As an Executive Assistant II, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the 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. Your governmental body for the purpose of the one year representation restriction is the Office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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 S2.12. Sincerely, ov)A.d Vincent . Dopko, General Counsel