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HomeMy WebLinkAbout89-525 LyonsSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 6, 1989 Mr. William F. Lyons, III 89 -525 400 Davis Street Harrisburg, PA 17109 Re: Former Public Employee; Section 3(e), Research Analyst, House Republican Caucus Dear Mr. Lyons: This responds to your letter of March 3, 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 Republican Caucus of the House of Representatives. Facts: You state that you have resigned your position as Research Analyst with the Republican Caucus of the House of Representatives, hereinafter the House, to take a position with the firm of Milliron and Associates. As to the specific duties and responsibilities in your position with the House, you note that you served as an Analyst for the House Finance Committee wherein you performed legislative analysis and research and worked on constituent correspondence. You advise that you reported to Otis W. Littleton, Director of Research and Representative Peter R. Vroon, the Republican Chairman of the Finance Committee. After stating you now report to John Milliron, the president of Milliron and Associates, you note that you will be performing various functions including lobbying of legislators, legislative analysis and research and contacting other trade associations. You conclude by requesting an advisory opinion as to what activities you may engage in without transgressing the Ethics Act. Discussion: As a Research Analyst for the House, 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. S402; 51 Pa. Code §1.1. This conclusion is Mr. William F. Lyons, III April 6, 1989 Page 2 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 with the House 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 with the Republican Caucus, the Finance Committee and Representative Vroon's Office, hereinafter collectively referred to as the Offices. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Offices. Therefore, within the first year after you would leave the House, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Offices. 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 House. It is noted, however, that the conflicts of interest Mr. William F. Lyons, III April 6, 1989 Page 3 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 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 House; 4. Lobbying, that is representing the interests of any person or employer before the Offices 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 Mr. William F. Lyons, III April 6, 1989 Page 4 bid, if submitted to or reviewed by the Offices, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave the House, 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 Offices, is not prohibited as "representation." See Kotalik, Opinion 84 -007. 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, 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 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, 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). 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 a Research Analyst, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the House, 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 Mr. William F. Lyons, III April 6, 1989 Page 5 governmental body for the purpose of the one year representation restriction is the House. 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. 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. 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 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, ovtID Vincent J. Dopko, General Counsel Mr. William F. Lyons, III c/o Robert Mills, Kevin J. Frederick Mc.Nees, Wallace & Nurick 100 Pine Street P. 0. Box 1166 Harrisburg, PA 17108 -1166 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 SUPPLEMENTAL ADVICE OF COUNSEL May 16, 1989 89 -525 -S Re: Former Public Employee; Section 3(e), Research Analyst, House Republican Caucus; Supplemental Advice of Counsel Dear Mr. Lyons: This responds to your Counsel's letter of April 17, 1989, in which additional advice was requested of the State Ethics Commission. Issue: You asked for clarification as to the restrictions upon your potential employment following your termination of service with the Finance Committee in the House of Representatives and with Representative Vroon's office. Facts: In your letter you express two major concerns as to a statement on page 5 of the advice which indicates that the governmental body would be the House and secondly a concern regarding the governmental body with which Mr. Lyons is associated. In particular, you note in the advice on page 2, paragraph 3 that Mr. Lyons' governmental body would be the Republican Caucus, the Finance Committee and Representative Vroon's office which are collectively referred to as the Offices. You then note that the foregoing is contradicted by page 5 of the opinion wherein it provides that Mr. Lyons' one year restriction relates to the House. Secondly, you request clarification as to the designation of the governmental body as the "Offices ". After noting that the opinion is limited by the facts which were originally presented, you state that the original letter did not sufficiently explain and emphasize that Mr. Lyons' did not report to the entire Republican Caucus of the William F. Lyons May 16, 1989 Page 2 House of Representatives, but rather that Mr. Lyons' only reported to Otis W. Littleton who was Director of Research and to Representative Peter R. Vroon who is the Republican Chairman of the Finance Committee. In this regard you state that Mr. Lyons' did not have any duties directly associated with the Caucus but was restricted in his activities to Representative Vroon and Mr. Littleton. Because of the foregoing clarification, you request additional advice as to the proper scope of the one year restriction upon Mr. Lyons concerning the governmental body with which he is associated. Additionally, you cite Lyden, Advice 88- 562; Babin, Advice 87 -656; and Dessen, Advice 87 -534. In the cited advices you indicate that under virtually identical circumstances to Mr. Lyons, you state that the is no substantive differences in the position formerly held by those individuals or in the new positions that they will be holding from the former and present position of Mr. Lyons. On this point you conclude that in all other advices the governmental body in which the individual was associated was the committee and the office of the state representative involved. You then reiterate that Mr. Lyons holds virtually an identical position as to these other individuals and that he had no direct reporting responsibilities to the Republican Caucus whereupon the appropriate representation restriction for Mr. Lyons in your view should be limited to the Finance Committee and the Offices of Peter Vroon. You conclude by setting forth your understanding that a request for a supplemental advice tolls the appeal which would not begin to run anew until the issuance of the supplemental advice. Discussion: In Lyons Advice 89 -525 which is incorporated herein by reference, you were advised that Mr. Lyons as a former public employee would be subject to the restrictions imposed by Section 3(e) of the Ethics Act quoted therein. Additionally, after reciting the definition of representation as contained in the regulations of the Commission, you were advised of its application to situations involving personnel appearances before the former governmental body, attempts to influence the former governmental body or participating, lobbying or representing the interest of any person or employer before the former governmental body. Finally, several opinions of the Commission were cited which set forth certain parameters of interpretation as to the applicability of the restrictions of Section 3(e) of the Ethics Act. Finally, the advice set forth the restrictions of 3(b) of the Ethics Act and noted that the advice was limited in its applicability town interpretation of the Ethics Act. After reviewing the request for supplemental advice, it appears the letter of March 3, 1985 did not sufficiently explain the extent of Mr. Lyons jurisdiction, responsibility, influence and control relative to his employment with the House. William F. Lyons May 17, 1989 Page 3 and responsibilities of Mr. Lyons relative to the entire file, it appears that the "governmental body" with which Mr. Lyons associated is limited to the Finance Committee and Representative Vroon's office, hereinafter collectively referred to as the "two offices." In light of the above, Lyons Advice 89 -525 is hereby modified to the extent that the representation is not applicable to the term "Offices" as defined in Advice 89 -525 but rather to only the "two offices" as defined in the Supplemental Advice. Additionally, Advice 89 -525 is also modified to the extent that the phrase "house" on page 5 is deleted and in the phrase "two offices" is inserted therein. Conclusion: Advice of Counsel No. 89 -525 is modified in two regards. The governmental body with which Mr. Lyons is associated is limited to the "two offices" defined as the Finance Committee and Representative Vroon's office. Secondly, the word "house" on page 5 of the Advice is deleted and the phrase "two offices" is substituted therein. 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code S2.12. Sincerely, Vincent . Dopko, General Counsel