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HomeMy WebLinkAbout90-532 MartinDear Mr. Martin: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 26, 1990 Mr. Kenneth E. Martin 90 -532 221 Geary Avenue New Cumberland, PA 17070 Re: Public Employee; Section 3(g); Budget Analyst; House of Representatives, Employment by Pennsylvania State University. This responds to your letter of February 21, 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 Appropriations Committee of the Pennsylvania House of Representatives. Facts: Since January, 1987 you have worked for the House Appropriations Committee of the House of Representatives as a Budget Analyst. You plan to terminate your employment on February 28, 1990 and begin working on March 1, 1990 with the Pennsylvania State University (Penn State), University Park as a Rural Economic Development Specialist. You are concerned as to what restrictions would apply to you regarding your former employment and whether those restrictions would be limited to the House of Representatives or whether they would extend to the Senate and the Administration as well. You specifically inquire as to whether restrictions would be imposed upon activities such as attending public hearings as a citizen observer, testifying at public hearings, or lobbying members of the House, Senate and the Administration in cooperation with the Penn State lobby effort. Discussion: As a Budget Analyst for Pennsylvania 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. This conclusion is based upon the job description, which when reviewed on an Mr. Kenneth E. Martin Page 2 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 monitoring grants, leasing, regulating, auditing or other activities where the economic impact is greater than de minimus on the interests of another person. Upon termination of your public employment, you would normally become a former public employee subject to Section 3(g) of the Public Official and Employee Ethics Law. However, in this case, it is noted that you have left one position of public employment to accept another position of public employment in the role of an Economic Developments Specialist for Penn State. Since you have in effect transferred positions of public employment, you would not become a former public employee. Consequently, the Ethics Law would not restrict your activities as a Penn State employee vis -a -vie matters concerning Penn State relative to the House of Representatives. In any event, it is noted that the Senate and the Administration were not the governmental bodies with which you were associated while working on the House Appropriations Committee. Therefore, the Ethics Law would not restrict your activities as an employee of Pennsylvania State University subject to the qualifications that Section 3(b) and 3(c) of the Ethics Law applies to everyone. Section 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 Law has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As a Budget Analyst for the House Appropriations Committee of the House of Representatives you are a public employee subject to the provisions of the Ethics Act. Since you are terminating your service with the House of Representatives and becoming employed by Pennsylvania State University, you are transferring from one position of public employment to another position of public employment and therefore would not be restricted regarding your activities as an employee of Penn State vis -a -vie the House of Representives. Sections 3(b) and Mr. Kenneth E. Martin Page 3 3(c) of the Ethics Law are applicable to everyone. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. 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