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HomeMy WebLinkAbout90-517 KiblerMs. Pamela A. Kibler 90 -517 P.O. Box 217 Main Capitol Building Harrisburg, PA 17120 -0028 Re: Former Public Employee; Section 3(g); Research Analyst; House of Representatives. Dear Ms. Kibler: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 5, 1990 This responds to your letter of January 19, 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 House of Representatives. Facts: You worked as a member of Representative James L. Wright, Jr.'s staff, but have now accepted a position as a lobbyist with the Tive Lobbying Group. You request an advisory opinion as to any restrictions the Ethics Law would impose upon you. Although a job description was requested for you, the personnel office of the House has responded by merely indicating that you are a Research Analyst who performs legislative research and bill analysis. Discussion: As a Research Analyst for House of Representatives, 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. Since neither you nor the personnel office of the House of Representatives has supplied a job description, it must be assumed that your duties as a Research Analyst are comparable to the general duties and responsibilities of other persons in that position. The Commission has determined that Research Analysts are public employees subject to the provisions of the Ethics Act (Dessen, 87 -534); it will be assumed that your duties and responsibilities were comparable and on that Ms. Pamela A. Kibler Page 2 basis you are a public employee subject to the provisions of the Ethics Law. 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. §402. Initially, to answer your request the governmental body with which you were associated while working with the office of Representative James L. Wright, Jr. 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. §402 Thus, the governmental body with which you have been associated upon the termination of employment would be the House of Representatives. Therefore, within the first year after termination of service with the office of Representative James L. Wright, Jr., Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the House of Representatives. 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 Ms. Pamela A. Kibler 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 was broadened 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 of 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 House of Representatives. 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 Ms. Pamela A. Kibler Page 4 which are signed by or contain the name of a former public official or public employee. 65 P.S. §402. 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. §402. 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 House of Representatives) including, but i not limited to, negotiations or. renegotiations in general or as to contracts with the House of Representatives; 2. Attempts to influence the House of Representatives; 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 House of Representatives 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 House of Representatives 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 House of Representatives 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 House of Representatives, is not prohibited as representation. Ms. Pamela A. Kibler Page 5 You may, assist in the preparation of any documents presented to the House of Representatives so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the House of Representatives. Once again, however, the activity in this respect should not be revealed to the House of Representatives. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the House of Representatives 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 or 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 Research Analyst, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with office of James L. Wright, Jr., 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 House of Representatives. Your conduct should d 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 Ms. Pamela A. Kibler Page 6 Interests be filed for the year following 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 in writing and must be received at the Commission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sjncerely, Vincent 'Y. Dopko, Chief Counsel