HomeMy WebLinkAbout81-583 BrightSTATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
June 26, 1981
ADVICE OF COUNSEL
Joseph C. Bright, Jr.
Drinker, Biddle & Reath
Philadelphia National Bank Building
Broad & Chestnut Streets
Philadelphia, Pennsylvania 19107
RE: Section 3(e), Board of Finance & Revenue
Dear Mr. Bright:
81 -583
This responds to your letter of May 13, 1981 in which
you requested an opinion from the Ethics Commission.
Issue: You requested advice as to whether you, a former
Chief Counsel to the Department of Revenue, may appear
before the Board of Finance & Revenue without regard to the
limitations imposed by Section 3(e) of the Ethics Act.
Facts: You informed us that you served as Chief Counsel to
the Department of Revenue from March 1980 through April
1981. During your tenure with the Department of Revenue you
did not sit as a member of the Board of Finance and Revenue.
We assume that during your tenure with the Department of
Revenue you did not regularly advise any representative on
the Board of Finance and Revenue. As you advised by phone
on June 25, 1981 you never appeared at a Board meeting,
although you did advise the Department's representative to
the Board on occassion, on specific cases. The Board is
composed of officials from state agencies, crie of which is
the Department of Revenue and rules on appeals in tax
related matters.
Discussion: The Ethics Act, 65 P.S. §401 et seq. defines
public employee as any individual employed by the Commonwealth
responsible for taking or recommending non - ministerial
official action with regard to several activities including
any activity where the official action has a greater than de
minimus economic impact on the interests of any person. Id,
§402. As Chief Counsel for the Pennsylvania Department of
Revenue you certainly were a public employee within the
meaning of the statute.
Joseph C. Bright, Jr.
June 26, 1981
Page 2
The Act further provides in Section 3(e) that no former
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. S403(e).
"Representation" which is prohibited within this period
includes:
(1) personal appearances before the body;
(2) attempts to influence that body; Cutt, 79 -023.
(3) submitting briefs, contracts, etc. on which your
name appears (although you may assist in preparing
same); See Kilareski, 80 -054.
(4) participating in cases over which you had direct
supervision, involvement or responsibility. See
Morris, 80 -039.
In addition, to decide whether you may "represent" any
person and /or practice before the Board of Finance and
Revenue it is necessary to identify the "governmental body"
with which you were associated. Clearly, you were associated
with the Department of Revenue as its Chief Counsel.
The Board of Finance and Revenue, however is not_
controlled by the Department of Revenue. The Department of
Revenue has a representative on the Board, which is made up
of five cabinet -level officials or their designates. The
Board does not operate as a part of the Department of
Revenue. In previous rulings, the Commission has stated
that the Chief Counsel of the Department of Revenue may
appear before the Board of Finance and Revenue where he had
no influence over any representative on the Board, as to
matters before the Board or regularly advised any Board
member. In your case, as to those specific matters or cases
on which you advised the Department's representative to the
Board, you may not represent any person before the Board
within the year following your departure from the Depart-
ment. Accordingly, the governmental body with which you
were associated as Chief Counsel was the Department of
Revenue. You may appear before the Board of Finance and
Revenue on cases other than those on which you advised the
Department's representative on the Board.
Joseph C. Bright, Jr.
June 26, 1981
Page 3
Conclusion: The Chief Counsel of the Department of Revenue
is a public employee subject to the Ethics Act. The govern-
mental body with which you were associated was the Depart-
ment of Revenue. You may appear before the Board of Finance
and Revenue without violating the one -year prohibition of
representation in Section 3(e) of the Act.
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 may be scheduled and a formal Opinion
from the Commission will be issued. You should make such a
request or indicate your disapproval of this Advice within
the next 30 days.
SW /rdp
Sincerely,
dra
General Co n-el
tianson