HomeMy WebLinkAbout90-514 SharpeMr. Jeffrey D. Sharp
1129 Baish Road
Mechanicsburg, PA 17055
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 5, 1990
90 -514
Re: Former Public Employee; Section 3(g); Legislative Assistant;
Senate.
Dear Mr. Sharp:
This responds to your letter of January 12, 1990, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether the Public Official and Employee Ethics
Law presents any restrictions upon your employment following your
termination of service with the Pennsylvania Senate.
Facts: You began working on January 22, 1990 for a state trade
association in a position which will include legislative
advocacy. For the past year you have served as legislative
assistant to Senator Earl M. Baker with duties and
responsibilities of developing and monitoring legislation,
performing constituent case work, writing speeches and preparing
written correspondence. Since Senator Baker is newly elected and
does not chair any subcommittee, your activities and functions
have been limited to his office. An individual job description
relative to your duties has been received from the Chief Clerk of
the Senate which is incorporated herein by reference. You
conclude by requesting advice as to the possible restrictions on
your activities under the Ethics Law.
Discussion: As a Legislative Assistant for the office of Senator
Baker, you are to be considered a "public employee" within the
definition of that term as set forth in the Public Official and
Employee Ethics Law and the Regulations of this Commission. 65
P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon the
job description, which when reviewed on an objective basis,
indicates clearly that the power exists to take or recommend
official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting, administering or
Mr. Jeffrey D. Sharp
Page 2
monitoring grants, leasing, regulating, auditing or other
activities where the economic impact is greater than de minimus
on the interests of another person.
Consequently, upon termination of employment, you would
become a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics Law. Section 3(g) of the
Ethics Act provides that:
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with .
promised or actual 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. 5402.
Initially, to answer your request the governmental body
with which you were associated while working with the office of
Senator Baker must be identified. Then, the scope of the
prohibitions associated with the concept and term of
"representation" must be reviewed.
The term governmental body with which a public official or
public employee is or has been associated" is defined under the
Ethics Law as follows:
Section 2. Definitions.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is
or has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices
within that governmental body. 65 P.S. 5402
Thus, the governmental body with which you have been
associated upon the termination of employment would be the
Senate. Therefore, within the first year after termination of
service with the office of Senator Baker, Section 3(g) of the
Ethics Law would apply and restrict representation of persons or
new employers vis -a -vis the Senate.
It is noted that Act 9 of 1989 significantly broadened the
definition of the term governmental body with which a public
official or public employee is or has been associated ". It was
Mr. Jeffrey D. Sharp
Page 3
the specific intent of the General Assembly to define the above
term so that it was not merely limited to the area where a public
official /employee had influence or control but extended to the
entire governmental body with which the public official /employee
was associated. The foregoing intent is reflected in the
Legislative debate relative to the amendatory language for the
above term:
We sought to make particularly clear
that when we are prohibiting for 1 year that
revolving -door kind of conduct, we are
dealing not only with a particular
subdivision of an agency or a local
government but the entire unit, and my
language simply makes it clear in the
definition of "governmental body" that we are
including subdivisions and offices within
that entity. Legislative Journal of House,
1989 Session, No. 15 at 290, 291.
Therefore, since the Ethics Law must be construed to
ascertain and effectuate the intent of the General Assembly under
1 Pa. C.S.A. 1901, it is clear that the governmental body with
which you have been associated is the Senate.
The Ethics Law does not affect one's ability to appear
before agencies or entities other than with respect to the former
governmental body. Likewise, there is no general limitation on
the type of employment in which a person may engage, following
departure from their governmental body. 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.
In respect to the one year representation the Ethics Law
defines "Represent" as follows:
Section 2. Definitions.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the following:
personal appearances, negotiations, lobbying
and submitting bid or contract proposals
Mr. Jeffrey D. Sharp
Page 4
which are signed by or contain the name of a
former public official or public employee.
65 P.S. 5402.
In addition, the term "Person" is defined as follows under
the Ethics Law:
Section 2. Definitions.
"Person." A business, governmental
body, individual, corporation, union,
association, firm, partnership, committee,
club or other organization or group of
persons. 65 P.S. 5402.
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
1. Personal appearances before the former governmental body
or bodies, (that is the Senate), including, but not limited to,
negotiations or renegotiations in general or as to contracts with
the Senate;
2. Attempts to influence the Senate;
3. Submission of bid or contract proposals which are signed
or contain the name of the former public official /employee.
4. Participating in any matters before the Senate over
which there was supervision, direct involvement, or
responsibility while employed by that governmental body;
5. Lobbying, that is representing the interests of any
person or employer before the Senate in relation to legislation,
regulations, etc.
The Commission has also held that listing one's name as the
person who will provide technical assistance on such proposal,
document, or bid, if submitted to or reviewed by the Senate
constitutes an attempt to influence the former governmental body.
Therefore, within the first year after termination of service,
you should not engage in the type of activity outlined above.
The Commission, however, has stated that the inclusion of one's
name as an employee or consultant on a "pricing proposal," even
if submitted to or reviewed by the Senate, is not prohibited as
representation.
You may, assist in the preparation of any documents
presented to the Senate so long as you are not identified as the
Mr. Jeffrey D. Sharp
Page 5
preparer. You may also counsel any person regarding that
person's appearance before the Senate. Once again, however, the
activity in this respect should not be revealed to the Senate.
Of course, any ban under the Ethics Law would not prohibit or
preclude the making of general informational inquiries of the
Senate to secure information which is available to the general
public. This, of course, must not be done in an effort to
indirectly influence these entities or to otherwise make known to
the governmental body the representation of, or work for the new
employer.
Finally, the Commission has concluded that the
administering of an existing contract as opposed to negotiating
or renegotiating a contract would not be prohibited by the
Ethics Law.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value and no public
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these provisions of the
law not to imply that there has or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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 Legislative Assistant, you are to be considered
a "public employee" as defined in the Ethics Law. ' Upon
termination of service with the office of Senator Baker, you
would become a "former public employee" subject to the
restrictions imposed by Section 3(g) of the Ethics Law. The
"governmental body with which a public official or public
employee is or has been associated" is the Senate. Your conduct
should conform to the requirements of the Ethics Law as outlined
above. The propriety of the proposed conduct has only been
addressed under the Ethics Law.
Further, should service be terminated, as outlined above,
the Ethics Law also requires that a Statement of Financial
Interests be filed for the year following termination of
service.
Mr. Jeffrey D. Sharp
Page 6
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 §2.12.
Sincerely,
Vincent J. Dopko,
Chief Counsel