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HomeMy WebLinkAbout81-630 MinerCarl A. Miner 111 Clark Street Lemoyne, PA 17043 Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1 179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 October 21, 1981 ADVICE OF COUNSEL 81 -630 RE: Section 3(g), Director, Bureau of Economic Development Dear Mr. Miner: This responds to your letter of September 18, 1981, in which you requested an opinion from the Ethics Commission. Issue: You asked for advice as to the effect of Section 3(g) of the Ethics Act on your activities after your resignation as Director of the Bureau of Economic Develop- ment. Facts: You told us that you were the Industrial Develop- ment Director, Department of Commerce. As Director your duties included managing the internal operation of the Bureau of Economic Development as well as attracting business to Pennsylvania and recruiting business into "partnerships for public purposes." You did not have authority to grant or loan state funds, promise the grant or loan of state funds or determine whether a loan of Commonwealth funds was to be made. You resigned as Director on September 23, 1981; you are now considering employment as an independent management consultant to industry expanding in Pennsylvania, or as an employee of an industry in the state or as a salesman of industrial real estate. Discussion: The Ethics Act, at 65 P.S. Section 401 et seq. regulates both present and former public employees to assure the public of the independence and impartiality State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Carl A. Miner October 21, 1981 Page 2 of its servants. Section 3(g) of the Act states: No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsyl- vania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an estab- lished plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grarit or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 P.S. 403(g). Because this section of the statute applies to a narrowly defined class of former state employees it is necessary to decide whether you were an "executive -level State employee." The Act itself defines an "executive -level State employee" as including "any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision." 65 P.S. 402. As your job description demonstrates you had discretionary powers over the recruitment of business. You were to communicate to business and industry the advantages of locating in the Commonwealth; by directing your communi- cation to some business rather than others, you affected the actions of the Commerce Department. Certainly the Direc- tor of the Bureau of Economic Development could influence the outcome of decisions by the Bureau and the Department of Commerce. Section 3(g) is not applied indiscriminately to all former executive level State employees so to decide that you are a former executive -level employee within the Carl A. Miner October 21, 1981 Page 3 meaning of the Act does not end the inquiry. The pro- hibition of 3(g) arises only when the recruitment of industry is accomplished by a grant or loan of money or a promise of a grant or loan of money. According to the information you gave us you did not have authority to promise or to make a loan of Commonwealth money nor even to determine whether to make such a loan. Because you did not use state loans or grants or the promise of a loan or grant in recruiting business, Section 3(g) does not apply to you although you are a former executive level state employee. Yet this is not to say that you are free from all constraint under the Ethics Act. Section 3(e) provides 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. 403 (e). You were associated with the Bureau of Industrial Develop- ment and you may not represent persons before that body for one year after September 23, 1981. This proscription upon representation does not pre- vent you from serving as an independent consultant or as employee of a business that received a Commonwealth grant or loan, nor from acting as an industrial real estate salesman and receiving a commission from a busi- ness that got a state grant or loan. Prior decisions of the Ethics Commission indicate that you may not make a personal appearance before the Bureau of Industrial Development, or attempt to influence the Bureau, or parti- cipate in any matter over which you had supervision, direct involvment or responsibility while with the Bureau. See, Morris 80 -039. You may make general informational inquiries of the Bureau, use knowledge and experience gained while employed by the Bureau or appear in a third forum such as the legislature. Id. Conclusion: You are a former executive -level state employee because you had discretionary powers which might have or could have affected the decision of the Bureau of Industrial Development. Although you are a former executive -level employee you may serve as a business consultant, an employee of a business or as a salesman of industrial real estate without reference to the pro- hibitions of Section 3(g) of the Ethics Act because you Carl A. Miner October 21, 1981 Page 4 did not have authority to recruit business by promising or giving loans and grants of State money. Nevertheless you must obey the restrictions of Section 3(e) of the Act. You may not within the first year after leaving State service make a personal appear- ance before the Bureau, attempt to influence its decisions or participate in any matter over which you had supervision, direct involvement or responsibility while you worked for the Bureau. You may make informational inquiries of the Bureau•• similar to those made by the general public, use knowledge and experience gained while with the Bureau and appear in any forum other than the Bureau. 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 /lma Sincerely, ndra S. C• istianson General C•.nsel