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HomeMy WebLinkAbout81-622 GoldsteinJay F. Goldstein 2224 West Livingston St. Allentown, PA 18104 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: {717) 783 -1610 September 15, 1981 ADVICE OF COUNSEL RE: Restrictions on Representation, Section 3(e) Dear Mr. Goldstein: State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania 81 -622 This responds to your letter of September 4, 1981 in which you requested an opinion from the State Ethics Commission. Issue: In your letter you asked whether the Ethics Act forbids you from participating in certain activities as a former public employee of the Pennsylvania Liquor Control Board (LCB). Facts: You informed us that from August, 1971 until August, 1981 you were employed by the LCB as an Enforcement Officer. The duties of an Enforcement Officer are described in the Liquor Code itself. These include the responsibility to investigate persons engaged in the unlawful sale, importa- tion, manufacture, or transportation of alcoholic beverages which might be in violation of the laws of this Commonwealth. As an Enforcement Officer you had the added responsibility of investigating in a covert and /or overt capacity establish- ments licensed by the LCB for alleged infractions of the Liquor Laws and related Crimes Code violations. You performed background investigations on persons interested in trans- ferring or securing liquor licenses and you carried out audit investigations on licensees tc determine legal compliance regarding the proper and lawful maintenance of required financial records. Jay F. Goldstein September 15, 1981 Page 2 Following termination of your service with the State you would like to perform certain activities as a consul- tant. You would like to have business cards printed which would include some reference to your former employment so that a perspective client would be given some immediate comprehension of your past role in the field of Liquor Law Enforcement. In addition, you would like to assist attorneys and realtors in organizing and processing liquor license transfer applications and assisting attorneys and realtors as to applications and requests for changes in corporate structures licensed by the LCB or changes to the licensed premises (that is restaruant or hotel additions to the existing premises). You would also be involved in advising and consulting with lawyers and license holders regarding the Liquor Code and the day -to -day operations and responsi- bilities they face under the Liquor Code. You would like to solicit these clients by mail or telephone along with any other types of communications designed to contact persons, partnerships, or corporations that might be interested in utilizing your expertise as a consultant. You indicate that any contact that would be made with various departments of the LCB would be ascertain the latest status of rules and procedures established by the LCB. You indicate that no attempt would be made to speak or contact any persons in the LCB beyond the same manner, capacity, and ability that would be available to any other resident of the Commonwealth. You would not seek to obtain information that would be not available to other persons making general informational inquiries of the LCB. Last, you indicate that you also are authorized to operate as a notary public in the Commonwealth of Pennsylvania. In your capacity as consultant as described above you might be involved with notarizing renewal forms for licenses, transfer forms, or any other forms that might be required for processing of matters before the LCB. This would involve having your name appear on these forms as notary. However, no attempt would be made to note your previous association with the LCB or that you were assisting the licensee in any way manner or capacity beyond the notarization. No willful actions would be undertaken on your part to bring yourself, as notary, to the attention of your former employer on behalf of any person on whose behalf you performed these notary public services. Jay F. Goldstein September 15, 1981 Page 3 Discussion: It is clear that you are a "public employee" within the provisions of the State Ethics Act which defines public employee as an individual engaged in taking or recommending official action of a non- ministerial nature with relation to inspecting, licensing, regulating or auditing. Indeed, the State Ethics Commission has previously determined that Liquor Control Enforcement Agents or officers are considered public employees within the purview of the State Ethics Act. See Peffley, 80 -055. Thus, upon your termination of service with the LCB, you became a "former public employee." Section 3(e) of the Ethics Act provides that: No former official or public employee shall represent a person, with or without compen- sation on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.,S0 403(e). • As a former public employee of the LCB your activities are restricted by Section 3(e) of the Ethics Act; however, it is necessary to determine the extent of your governmental body. In your case it is fairly clear that your governmental body with which you were associated includes the entire LCB. Accordingly, you are prohibited from representing any person before the LCB for the one year period following your termi- nation of service with the LCB. The Commission has held that "representation" includes the following activities: (1) personally appearing before the governmental body with which you were associated, including but not limited to negotiations on contracts; (2) attempting to influence that body; (3) participating in any manner in a specific case, matter or contract over which you had supervision, direct involvement, or responsibility while employed with the governmental body; (4) lobbying, that is representing the interests of any person before that governmental body as to legislation, regulations, etc. See Morris, 80- 039 and Russell, 80 -048; Jay F. Goldstein September 15, 1981 Page 4 (5) signing and submitting under your own signature proposals, contracts, or applications to the governmental body; (6) including your ;game on a bid proposal as an indi- vidual who would be involved in administering any contract to provide technical assistance which is the subject of the proposal. See Dalton, 80 -056 and Kilareski, 80 -054. While these restrictions must be imposed in relation to the LCB you may, however, engage in the following activities: (1) You may administer rather than negotiate any contract that is to be awarded to any future employer or client (licensee, attorney, realtor, for example) by the LCB so long as the contract is awarded without your name being included as noted in items 5 and 6 above. (2) You may make general informational inquiries of the LCB so long as no attempt is made to influence the LCB or obtain information not generally available to the public as you indicate in your letter and as noted above. (3) You may utilize the knowledge and expertise gained during your tenure as a public employee vis -a -vis consulting clients except as set forth above. This includes providing technical and administra- tive assistance to the attorneys, realtors and licensees to whom you intend to provide such services. See Fox, 81 -589. You may even assist in preparation of documents to be presented by these individuals to the LCB so long as your name does not appear on these documents as noted above. In relation to your notary services with the limitations you specify in the "facts" portion of this advice, we would not feel that the mere appearance of your name as notary on such items would have a tendency to influence your former agency. Therefore, this activity would be permisable. Likewise, in order to effectively utilize your knowledge and expertise gained as a public employee you may attempt to secure consulting clients by the issuance of a business card including reference to you former employment and may utilize the mail and telephone services and other types and forms of communications to contact perspective clients. Jay F. Goldstein September 15, 1981 Page 5 (4) You may appear and represent any person on behalf of any client or new employer before any govern- mental agency other than the LCB. You may appear and represent these clients in relation to lobbying activities except before the LCB and provide expert advice before any agency other than the LCB. This includes appearances on behalf of clients in appeal proceedings in county or state or federal court. Conclusion: As a former public employee your conduct should be guided by this advice. The prohibitions and the activities allowable are noted above and should be met. In addition, as a former public employee you are required to file a Financial Interest Statement for each year that you hold office and the year following your termination of services. Accordingly, a Financial Interest Statement would be required to be filed no later than May 1, 1982. 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. SSC /rdp cc: David E. Kerr, Director LCB Sincerely, /1 / II Sandra S. hristianson General Counsel