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HomeMy WebLinkAbout84-609 MyersSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108-1470 TELEPHONE (717) 783 -1610 September 13, 1984 ADVICE OF COUNSEL Mr. R. David Myers 84 -609 338 Old Stone House Road Boiling Springs, PA 17007 Re: Former Public Employee; Section 3(e), Executive Assistant Dear Mr. Myers: This responds to your letter of August 22, 1984, 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 Commonwealth, should such occur. Facts: You indicate that you are currently as the Executive Assistant to Senator Jeanette F. Reibman. Senator Reibman is the ranking minority member of the Senate Education Committee. As her Executive Assistant, you write speeches and press releases, answer correspondence, and draft legislation for the Senator. Additionally, you analyze education legislation for the Democratic members of the Senate Education Committee. You are contemplating seeking another position and therefore, you are interested in securing an advisory opinion as to what restrictions may be imposed under the State Ethics Act on your efforts to find another job. Discussion: As a Executive Assistant for Senator Reibman, we will assume 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. See Section 2 of the Ethics Act, 65 P.S. 402 and the regulations of the Commission set forth at 51 Pa. Code 1.1. Consequently, if you were to terminate 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: Mr. R. David Myers September 13, 1984 Page 2 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. 403. Initially, to answer your request we must identify the "governmental body" with which you were associated while working with the office of Senator Reibman, hereinafter, the Office. Then, we must review the scope of the prohibitions associated with the concept and term of "representation ". 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 employment extends not to those entities where he may have had contact or acquired acquaintances and colleagues but only to those entities where he had influence, responsibility, supervision, or control. See Ewin, 79 -010. See also Kury v. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From your job description and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appear to have been limited to the Office. Thus, the "governmental body" with which you must be deemed to have been "associated" should you terminate your employment with Senator Reibman would be the the Office. Therefore, within the first year after you would leave the Senate, Section 3(e) of the Ethics Act would apply and restrict your activity of "representation" of persons or new employers vis -a -vis the Office. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office. Likewise, there is no general restriction against your seeking employment and engaging in private work or supplying services to clients or employers, in general, following your retirement or departure from the Senate. You may not, however, "represent" any new employer or client before the Office as described more fully below for the first year after you would leave the Senate. 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 employe. 51 Pa. Code 1.1. Mr. R. David Myers September 13, 1984 Page 3 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 deemed to have been associated, that is the Office, including, but not limited to, negotiations or renegotiations on contracts with the Office; 2. Attempts to influence the Office; 3. Participating in any matters before the Office on any case, matter, or contract over which you had supervision, direct involvement, or responsibility while employed by the Senate; 4. Lobbying, that is representing the interests of any person or employer before the Office in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. In light of the definitions and restrictions outlined above, the Commission, furthermore, has held that the mere act of preparing and signing as preparer or " appearing" by having your name listed as the person who will provide technical assistance on a proposal, document, or bid, to be submitted to or reviewed by the Office, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you would leave the Senate, you should not allow your name to appear on proposals, documents, or bids, either as the preparer or as the person who will provide technical assistance on these documents, proposals, bids, etc., which will be presented to the Office or which will be reviewed by the Office. 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 Office, is not prohibited as "representation ". See Kotalik, 84 -007. You may, even under the above restrictions, assist in the preparation of any documents presented to the Office and assist in the preparation associated with appearances to be made by a person other than yourself before the Office so long as you are not identified as the preparer or the person who will provide technical assistance as outlined above. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office to secure information which is available to the general public. See Cutt, 79 -023. Likewise, 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. This would be true even if your administration of a contract involved dealing with personnel of the Office or personnel within the Senate generally. See Dalton, 80 -056 and Beaser, 81 -538. Mr. R. David Myers September 13, 1984 Page 4 Conclusion: As a Executive Assistant to Senator Reibman, you are to be considered a "public employee" as defined in the Ethics Act. If you terminate your service with the Office of Senator Reibman, you would become a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. If this occurs, your conduct should conform to the requirements of the Ethics Act as outlined above. Further, should you terminate your employment as outlined above, you are reminded that the Ethics Act also requires that as a public employee you must file a Statement of Financial Interests for each year in which you hold the position described above, and for the year following your termination of service. Pursuant to Section 7(9)(ii), this Advice 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 full 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 2.12. SSC /na Sincerely, ,{ / 1x.& - 1 - 1 Sandra S. Chri tianson General Counsel