HomeMy WebLinkAbout84-503 ZwiklMr. Kurt D. Zwikl, Member
House of Representatives
513 Linden Street
P.O. Box 789
Allentown, PA 18105
Mailing Address.
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
January 10, 1984
ADVICE OF COUNSEL
84 -503
RE: Representation, Section 3(e)
Dear Representative Zwikl:
This responds to your letter of December 12, 1983, in which you requested
advice from the State Ethics Commission.
Issue: You ask what restrictions would be imposed upon you under the Ethics
Act following your departure from public service.
Facts: You indicate that you are currently serving in the House of
Representatives from the 132nd Legislative District. A few weeks ago you
announced that you would not be a candidate for re- election to this position.
You wish some general guidelines as to what occupations you may pursue
following your termination of public service and an indication of the time
limits for which these restrictions will operate.
Discussion: As an elected member of the House of Representatives you are a
"public official" as that term is defined in the Ethics Act. See Section 2 of
the Ethics Act, 65 P.S. 402. As such, upon leaving office you will become a
"former public official ", this conduct will be governed by Section 3(e) of the
Ethics Act as follows:
(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. 403(e).
State Ethics Commission • 308 Finance Building e Harrisburg, Pennsylvania
Mr. Kurt D. Zwikl, Member
January 10, 1984
Page 2
As a member of the House, the restrictions which you will be required to
observe a(^e limited to the one -year period following the end of your term of
office or your departure from office. This is one calendar year and the
restrictions to be discussed below should be observed during that entire
period. The Ethics Act does not impose any specific restrictions on the type
of employment you may accept or the occupation which you may pursue following
your sevice with the Commonwealth. Rather, as it can be seen from Section
3(e), the Ethics Act restrictions your activities insofar as they may
constitute "representation" before the "governmental body" with which you have
been associated.
First we should discuss the scope and extent of the term "governmental
body" with which you may have been "associated" while serving with the House
of Representatives. The Commission has previously reviewed this question and
isFued Op`nions which indicate that the "governmental body" with which a
member of the House is associcated includes the House itself and any entity on
which you may have served as ex officio member or any entity on which you may
have served by virtue of appointment because of your position as a member of
the House of Representatives. See Seltzer, 80-004; Goebel, 80 -045; Geesey,
80 - 046; and Geesey, 80 -057. We provide these general guidelines because we
have not been provided with factual information as to whether you currently
serve on "any commisssions or entities other than as a member of the House in a
capacity similar to that outlined in the above - referenced opinions. However,
should you need further advice on a specifi;: question or body, please contact
us again.
However, we can conclude that insofar that you are obviously a member of
the House of Representatives, the restrictions for the one -year period,
outlined in Section 3(e), will, of necessity, apply to your "representation"
of any person before the House of Representatives.
The Commission has also had many opportunities to consider the scope and
nature of the term "representation." The Commission, in its regulations, has
defined the term "representation" as follows:
Any ac on be'Aal f of a.�,. 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 1.1.
Mr. Kurt D. Zwikl, Member
January 10, 1984
Page 3
that:
Further, opinions of the Commission indicate that the Commission has held
1. personal appearances before the governmental body with which you
were associated, in this case the House and any other entity on
which you served as an ex officio or appointed member (by virtue of
your House membership) are prohibited. See Morris, 80 -039;
2. attempts to influence that governmental body with which you are
associated are also prohibited;
3. participating in any manner before this body in any case or matter
over which you had supervision, direct involvement, or
responsibility while serving with the House are prohibited;
4. lobbying, that is representing the interests of any person before
the House to influence that body in relation to legislation,
regulations, etc. are prohibited; and,
5. signing and submitting under your own name bids or proposals which
list your name as preparer or the person to provide technical
assistance under the proposal if these are submitted to the body
-- the House of Representatives -- with which you were associated
are prohibited. See Dalton, 80 -056 and Kilareski, 80 -054.
Notwithstanding the restrictions upon your activities as set forth above
following your termination of service with the House, Opinions of the
Commission indicate that a former public officials may nevertheless engage in
the following activities;
A. You may appear in third forums such as state or federal court or
before any other governmental body other than the governemntal body
(the House, on the facts provided) with which you may have been
associated as outlined above;
B. You may make general informational inquiries of the governmental
body with which you have been associated if these inquiries are of
the same nature or similar to that made by the public.
C. You may utilize the knowledge and expertise gained during your
tenure as a public official except as set forth in numbers 1 through
5 above.
D. You may administer a contract that has been awarded or negotiated
between your former governmental body and any new employer or new
corporation as long as the contract was awarded in accordance with
the above restrictions (see No. 1 and No. 5 above, in particular),
and assuming that you have not attempted to negotiate or
re- negotiate the terms or conditions of the contract.
Mr. Kurt D. Zwikl, Member
January 10, 1984
Page 4
Other than the limitations and restrictions outlined above as noted
previously there is no inherent restriction on the type of employment that you
may accept_and even if you were to accept employment, the restrictions
outlined above are personal to you and do not extend to or "taint" any other
members of the firm, business, corporation, etc., with which you may be
associated or employed following your departure from the House. Thus, so long
as you do not engage in prohibited activity outlined above under the term
"representation" a business, associate, partner, co- employee, etc. may
represent himself, the partnership, the corporation, etc. even before the
bodies with which you may have been "associated" during your tenure as a
public official.
Conclusion: During the first (calendar) year following your termination of
service with the Commonwealth you must observe the restrictions upon your
ability to "represent" any person before the governmental bodies with which
you have been associated as those terms and restrictions are outlined above.
Should you have any further specific questions about permissible or prohibited
conduct, please feel free to contact us again,
Also, as a "former public official" we remind you that you must file a
Financial Interest Statement for each year in which you serve in office and a
for the year after you leave office.
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 made, in
writing, to the Commission witMn 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
SSC /rdp
Sincerely,
andra S. Christian
General Counsel