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HomeMy WebLinkAbout81-610 DiCarloDear Mr. DiCarlo: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 August 28, 1981 ADVICE OF COUNSEL David C. DiCarlo Government & Community Relations 717 State Street Erie, Pennsylvania 16566 RE: Section 3(e); House of Representatives, Democratic Leadership This responds to your letter of June 26, 1981 in which you requested an opinion from the Ethics Commission. Issue: You requested advice as to the limitations imposed by the Ethics Act on your activities as a former member of the Pennsylvania House of Representatives and as a contractor with the (House) Democratic Leadership. Facts: You are a former member of the Pennsylvania House of Representatives; your term expired November 30, 1980. From December 1, 1980 through April 15, 1981 you were under contract with the Democratic House Leadership to evaluate various needs of the Democratic Caucus and to plan the development of the Capitol Complex expansion. Discussion: The Ethics Act, 65 P.S. §401 et. seq., imposes restrictions not only upon public officials but upon certain activities by former public officials and public employees. Specifically, Section 3(e) of the Act provides that: 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 assoicated for one year after he leaves that body. 65 P.S. §403(e) State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 81 -610 David C. DiCarlo August 28, 1981 Page 2 Before discussing the limitations on representation imposed by the statute it is necessary to determine the governmental bodies with which you were associated. There can be no doubt that you are a former public official because of your membership in the Pennsylvania House of Representatives and that you were, therefore, associated with the House. You may not, accordingly, represent any person before the House, its committees and component parts, for one year after the expiration of your term on November 30, 1980. See Goebel, 80 -045. In addition, if you served as Chairman of any standing committee of the House, your "governmental body" would extend to include the body, department, agency, etc. most closely associated with or regulated by that standing committee. See Geesey, 80 -046. If you were appointed, by virtue of your role as Repre- sentative to serve on any board, commission, etc. your "governmental body" would extend to that board, commission, etc. See 80 -057. You did not end your association with all governmental bodies when you left the House. From December 1, 1980 to April 15, 1981 you were employed by the Democratic House Leadership. As the Ethics Commission noted in its Opinion in Ewing, 79 -010 the term "governmental body" may refer to entities such as the Democratic House Leadership. Absent any indication to the contrary we assume that you performed non - ministerial duties for the Leadership sufficient to bring you within the Act's definition of public employee, 65 P.S. §402. You may also be considered a former public employee even though you were under contract to the Leadership. Public employee status is determined with reference to the nature of the employment, not the method of compensation. Massiah- Jackson, 80 -036. Therefore, from December 1, 1981 to April 15, 1981 you must be considered a public employee associated with the "governmental body" of the Democratic House Leadership. April 15, 1981 mark the end of your service with the Democratic Leadership, and accordingly, you may not represent persons before the Leadership for one year after April 15, 1981. The scope of the term "representation" must be addressed. Generally, the Commission has held that: (1) personal appearance (including submitting and /or signing bid proposals with your own name) before the governmental body is prohibited, Morris, 80- 039; (2) attempts to influence the governmental body are prohibited, Goebel, 80 -045; (3) representing the interests and views of any other person, Goebel, 80 -045. This includes lobbying before the governmental bodies with which you were associated. David C. DiCarlo August 28, 1981 Page 3 You may not engage in any of these activities before the House for one year after November 30, 1980 or before the Democratic Leadership for one year after April 30, 1981. Of course, you may freely represent the interests of any persons before any other governmental body with which you were not associated without reference to the provisions of Section 3(e). Even during the one year period after leaving public office or employment you may express your own views on your own behalf to the House or to the Democratic Leadership. Lloyd, 80 -040. You may also utilize the knowledge and experience gained as a public official and • make general inquiries, similar to those made by the public, of both the House and the Democratic Leadership. Goebel, 80 -045. Conclusion: You were a member of the Pennsylvania House until November 30, 1980 and an employee of the Democratic Leasdership until April 15, 1981. Accordingly, you may not represent any person before the House, its committees or component parts, for one year after November 30, 1980 or before the Democratic House Leadership for one year subsequent to April 15, 1981. You may not make personal appearances or attempt to influence either the House or the Leadership for one year after leaving those bodies. Even during the one year period you may represent the interests of other persons before governmental bodies other than the Leadership or the House. You may express your own views on your own behalf to either body as well as make inquiries similar to those made by the general public. You may use experience and knowledge gained in government service except as prohibited by 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 David C. DiCarlo August 28, 1981 Page 4 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. SSC /rdp cc: Matthew J. Ryan, Speaker House of Representatives Si. cerely, ndra . C' istianson eneral C. nsel