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HomeMy WebLinkAbout89-508 WitmerSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 1, 1989 Mr. Lowell A. Witmer 89 -508 1815 N. Second Street Harrisburg, PA 17102 Re: Former Public Employee, Section 3(e), Section 3(a), Senate, County Clerk of Courts Dear Mr. Witmer: This responds to your letter of January 23, 1989, in which you requested advice from the State Ethics Commission. Issue: Whether the State Ethics Act presents any restrictions upon a former employee of the State Senate regarding lobbying activity with the Commonwealth of Pennsylvania, the Senate or House of Representatives when that individual currently holds the position of County Clerk of Court. Facts: After noting that you served as a Legislative Assistant to Senator J. Doyle Corman from February, 1981 to December, 1985 and as Director of the Senate Transportation Committee from January, 1986 through December, 1988, you state that from January, 1988 to the present you hold the position of Dauphin County Clerk of Court. In light of the above background, you request advice as to what restrictions the Ethics Act would impose upon you regarding lobbying activity or other relations with the Commonwealth of Pennsylvania, the Senate or the House of Representatives. Discussion: As the Clerk of Court of Dauphin County, you are a public official as that term is defined under the Ethics Act. 65 P.S. 5402; 51 Pa. Code S1.1. As such you are subject to the provisions of the Ethics Act and the restrictions therein are applicable to you. In addition, as a former employee of the State Senate, you would become a former public employee subject to the provisions of Section 3(e) of the Ethics Act upon termination of that employment. Mr. Lowell A. Witmer March 1, 1989 Page 2 Section 3(e) of the Ethics Act provides: 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. Since you terminated employment with the State Senate on December, 1988, the one year period under Section 3(e) elapsed in December, 1989 and, therefore, Section 3(e) at this point in time would no longer restrict your representation before your former governmental body. Section 3(a) of the Ethics Act provides: Section 3. Restricted Activities. (a) No public official or public employee shall use his public office or any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, or a business with which he is associated. 65 P.S. 5403(a). Under Section 3(a) quoted above, the State Ethics Commission has determined that use of office by a public official /employee to obtain a financial gain for himself or a member of his immediate family or a business with which he is associated which is not provided for in law transgresses the above provision of law. Thus, use of office by a public official /employee to obtain a financial gain which is not authorized as part of his compensation is prohibited by Section 3(a): Hoak /McCutcheon, Orders No. 128, 129, affirmed McCutcheon v. State Ethics Commission, 77 Pa. Commw. Ct. 529, 466 A.2d 283 (1983); Yacobet, Order No. 412 -R, affirmed Yacobet v. State Ethics Commission, 109 Pa. Commw. Ct. 432, 531 A.2d 536 (1987). Similarly, Section 3(a) of the Ethics Act would prohibit a public official /employee from using public office to advance his own interests; Koslow, Order 458 -R, affirmed Koslow v. State Ethics Commission, Pa. Commw. Ct. , 540 A.2d 1374 (1988). Likewise, a public official7employee may not use the status or position of public office for his own personal advantage; Huff, Opinion 84 -015. Mr. Lowell A. Witmer March 1, 1989 Page 3 Under the above provision of law, the Ethics Act would not restrict your outside employment as a lobbyist before the Commonwealth of Pennsylvania, the Senate, or the House of Representatives. However, the Ethics Act would impose restrictions on your conduct as a Clerk of Court in that you could not conduct your lobbying activity or other outside financial or personal interests at the Office of County Clerk of Court. In addition, you could not use office personnel, equipment, telephones, supplies or postage for the purpose of carrying on your lobbying business or any other outside business or personal activities. Dorrance, Order 456; Cohen, Order 610 -R. Additionally, you may not use public office or confidential information as the means in whole or part of obtaining clients; for example, you could not use the official stationery of the County Clerk of Courts of Dauphin County as a means of advertising or soliciting for clients or to advance any other outside private L'u iness interests. 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. Specifically not addressed in this advice is the applicability of the County Code. Conclusion: As the Clerk of Courts for Dauphin County, you are a public official subject to the provisions of the Ethics Act. Upon the termination of your service with the Senate on December, 1988 you became a former public employee under Section 3(e) of the Ethics Act. However, since the one year provision of Section 3(e) has elapsed, that Section would not restrict your representation of persons before your former governmental body, the Senate. Additionally, although Section 3(a) of the Ethics Act would not per se preclude you as a County Clerk of Courts from engaging in an outside lobbying activity, you could not use public office or confidential information as a means of obtaining clients and further you could not carry on your outside business interests within the office of the Clerk of Courts. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Lowell A. Witmer March 1, 1989 Page 4 such. 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 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, ga m Vincent . Dopko, General Counsel