Loading...
HomeMy WebLinkAbout81-623 WheelerWilliam J. Wheeler, Esquire 1200 Walnut Street Philadelphia, PA 19107 RE: Section 3(e), Restrictions, Representation Dear Mr. Wheeler: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 September 8, 1981 ADVICE OF COUNSEL 81 -623 This responds to your communication of September 10, 1981 in which you requested advice from the State Ethics Commission. Issue: -r You request information relating to your duties and responsibilities under the Ethics Act if you are deemed "a public employee." Facts: You advise that you are a former Assistant Attorney General who voluntarily terminated employment with the Bureau of Professional and Occupational Affairs, Department of State, in February of 1980. You indicate that on July 1, 1980 the Bureau of Professional and Occupational Affairs executed service purchase contracts with you to obtain your services as a Hearing Examiner for the State Osteopathic Board and for the State Board of Motor Vehicle Manufacturers, Dealers, and Salesmen. During the time you were under such contract with the Bureau of Professional and Occupational Affairs you actually served as Hearing Examiner on only two cases, one being assigned from the State Osteopathic Board and one being assigned from the Motor Vehicle Board. Neither of these . hearings involved complex or extended litigation on which you devoted an above - average amount of time. You intend to submit a resignation and /or to terminate your contract with the Bureau of Professional and Occupational Affairs and to cease operating or being available as a Hearing Examiner for both Boards as of September 24, 1981. State Ethics Commission • 308 Finance Building 0 Harrisburg, Pennsylvania William J. Wheeler, Esquire September 8, 1981 Page 2 After such termination of services, you desire to represent respondents appearing before the State Motor Vehicle Board. During your tenure you had no access to confidential information relating to agency (enforcement) files. Discussion: The main question presented is whether you may be considered within the definition of "public employee" under the provisions of the Ethics Act. All public employees are required to conform their conduct to the requirements of the State Ethics Act. In regard to "former public employees" the particular prohibition in question here relates'to Section 3(e) of the Ethics Act. This Section 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 associ- ated for one year after he leaves that body. 65 P.S. 403(e). In reviewing this question the main consideration is not the mechanism by which you were paid (Service Purchase Contract) but whether you serve in a position of public trust and are thus within the scope of the concerns of Act 170. See Massiah- Jackson, 80 -036 and Morris, 80 -039. In these cases the Commission expressed the opinion that individuals could not escape application of the Ethics Act based solely on the premise that they serve under Service Purchase Contract as distinguished from those employees who are "regular compliment" employees. If, in fact, there is little substantive difference between the services rendered by a person under Service Purchase Contract and the full - time hearing examiner within the Bureau then the Commission would conclude that these individuals (on Service Purchase Contract) are "public employees" within the coverage of the Act. Similarly, if your relationship to the Bureau was such that we must deem you to be a "public employee" you would become a "former public employee" upon your termi- nation of service with the Bureau. The Commission has established serveral criteria in considering and reviewing the question of whether an indi- vidual should he considered a "public employee." These criteria include the history of compensated service, the expectation that the individual will continue in the capacity in question, whether the compensated services are William J. Wheeler, Esquire September 8, 1981 Page 3 identical to or similar to services that would ordinarily be performed by an elected or appointed official or employee, whether or not the services performed are similar or identical to those performed ordinarily by full -time employees, the degree of supervision by the agency, and whether the indivi- dual performs compensated services for a number of agencies. Massiah- Jackson, supra. In addition, in relation to hearing examiners within the Department of State the Commission has adopted a "rule of thumb" that any individual serving one of the boards within the Department of State, Bureau of Professional and Occupational Affairs as a Hearing Examiner who serves on more than two assigned cases within the reporting period should be considered a "public employee." See Sciotto, 81- 596. Thus, since you have not been assigned more than two cases within the period in question we conclude that you are not to be considered-within the class of "public employees." Consequently, upon your termination of your relationship with the Bureau, you would not be a "former public employee" subject to any of the restrictions contained in Section 3(e) of the Ethics Act. The Ethics Act, therefore, would not preclude your representation of individuals before the State Motor Vehicle Board even within the first year after your termination of services with that Board. Finally, I note that there is no outstanding prohi- bition related to• your service as a former Assistant Attorney General, since that service ended in February, 1980. The one -year prohibition that would have related to your service as a former Assistant Attorney General expired as of February, 1981. Conclusion: Upon the facts you presented and using the criteria previsously established to determine which indivi- duals fall within the classification of "public employees ", we find that you are not a "public employee" subject to the restrictions applicable to a "former public employee" contained in Section 3(e) of the Ethics Act. Accordingly, you may, upon your termination of your contract as a Hearing Examiner as of September 24, 1981, undertake to represent clients before the State Motor Vehicle Board. William J. Wheeler, Esquire September 8, 1981 Page 4 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. Sincerely, ndra S. Ch stianson General Co sel SSC /rdp cc: Stanley Miller, Commissioner Bureau of Professional & Occupational Affairs