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HomeMy WebLinkAbout85-607 RappMr. Stanley I. Rapp P.O. Box 11972 Harrisburg, PA 17108 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 December 18, 1985 ADVICE OF COUNSEL 85 -607 RE: Former Puhlic Employee; Section 3(e), Pennsylvania State Senate Dear Mr. Rapp: This responds to your letter of November 14, 1985, 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 Pennsylvania State Senate. Facts: You requested the advice of the State Ethics Commission regarding the permissahle scope of your activities within the purview of the State Ethics Act as a former employee of the Pennsylvania State Senate. From 1981 to November 30, 1984, you served as staff administrator for the Majority Caucus of the Senate of Pennsylvania. You were appointed to this position by the President Pro Tempore of the Senate. The position which you held is a statutory position. 46 P.S. 542.102h. In this position, you were responsihle for administering the fiscal and personnel matters of the Majority Caucus in conjunction with the chief clerk. In addition to the above specified duties, you have advised that you also served as an assistant to the President Pro Tempore of the Senate in managing the institutional operation of the Senate. In December of 1984, upon the retirement of the then President Pro Tempore of the Senate, the new President Pro Tempore designated a new staff administrator and you were re- assigned as an assistant to the President Pro Tempore. In your new position, you were responsihle for the development and implementation of an office automation and computer service project. You reported directly to the President Pro Tempore and the staff administrator and assisted in the development of an Automated Office System for the majority members of the Senate of Pennsylvania. You indicate that you terminated your employment with the Pennsylvania Senate on April 10, 1985. You now seek the advice of the Commission as to any restrictions that may be placed upon your private employment activities under the State Ethics Act. Mr. Stanley I. Rapp December 18, 1985 Page 2 Discussion: At the outset, it must he noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may he imposed by other codes of conduct such as the State Adverse Interest Act or the Governor's Code of Conduct. As a staff administrator for the members of the Majority Caucus of the Pennsylvania State Senate and as an assistant to the President Pro Tempore of the Senate, you are to be considered a "public employee" within the definition of that teen as set forth in the Ethics Act and the regulations of this Commission. 65 P.S. 5.402; 51 Pa. Code .51.1. This conclusion is hased upon your functions, which when reviewed on an objective basis, indicate clearly that you had the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Myers, 84 -609; Rouch, 85 -519. Consequently, upon termination of this employment, you became a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: 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 Senate. 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 office or employment extends to those entities where he had influence, responsibility, supervision, or' control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been different in your two positions. When you served as staff administrator for the Majority Caucus of the Senate, your responsibility, influence and control appears to have extended to the entire Senate. Thus had you been serving in that position at this point in 1r. Stanley I. Rapp December 18, 1q85 Page 3 time, the governmental body with which you had heen associated would he considered the Majority Caucus, generally. However, it is approximately one year since you served in that capacity and thus, this broad restriction does not appear to be applicable at this time. In your final position with the Senate you served as an assistant to the President Pro Tempore of the Senate. Your duties in this respect were more restricted than your functions and duties as the staff administrator for the Majority Caucus. Your influence, authority and control in this position appears to have been exercised only within the office of the President Pro Tempore. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office of the President Pro Tempore, hereinafter the Office. Therefore, within the first year after you would leave the State Senate, the Office, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis the Office. See Rouch, 85 -519. 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 limitation on the type of employment in which you may engage, following your departure from the Senate. We do note, 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 he obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction 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. The Commission, in its opinions has also interpreted the term "representation" as used in Section '3(e) of the Ethics Act to prohibit: Mr. Stanley I. Rapp December 18, 1985 Page 4 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Office), including, hut not limited to, negotiations or renegotiations on contracts with the Senate; 2. Attempts to influence the Office; 3. Participating in any matters before the Office 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. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal , document, or bid, if 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 leave the Senate, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Office so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office. Once again, however, your activity in this respect should not be revealed to the Office. 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. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Office your representation of, or work for your new employer. Finally, 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. See Dalton, 80 -056 and [leaser, 81 -538. Conclusion: As an assistant to the President Pro Tempore of the Pennsylvania Senate, you were to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Senate, you became a "former public employee" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one year representation restriction is the Office of the President Pro Tempore. Mr. Stanley I. Rapp December 1R, 1P85 Page 5 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 he scheduled and a formal Opinion from the Commission will be issued. Any such appeal must he made, in writing, to the Commission within 15 days of service of this Advice pursuant to 51 Pa. Code 2.12. JJC /rdp Si ncerely, ohn J.,Co'nti no General' Counsel