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HomeMy WebLinkAbout82-530 SilverstineMr. Scott H. Silverstine P.O. Box 1541 Harrisburg, PA 17105 Dear Mr. Silverstine: Mailing Address: STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 April 7, 1982 ADVICE OF COUNSEL 82 -530 RE: Section 3(e); Department of Revenue; Board of Appeals; Tax Appeals Hearing Examiner I. This responds to your letter of March 1, 1982, in which you requested advice from the State Ethics Commission. Issue: May a former Tax Appeals Hearing Examiner I represent taxpayers before the Board of Appeals in the Pennsylvania Department of Revenue when his employment with the Common- wealth ended February 18, 1982. Facts: You write that you were employed as a Tax Appeal Hearing Examiner I in the Pennsylvania Department of Revenue until February 18, 1982, at which time your employment with the Commonwealth ended. As a Tax Appeals Hearing Examiner I, you work under the general supervision of one of the members of the Department's Board of Appeals. You perform your duties with considerable independence. Among your major responsibilities are the following: 1. You receive tax appeal cases from the docket section of the Board of Appeals and review the petitions to determine the specific issues in question and to prepare for a hearing or final decision. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Scott H. Silverstine April 7, 1982 Page 2 2. You correspond with taxpayers, accountants, attorneys, bank officials, etc. to obtain any additional_ information necesary to conduct a hearing and /or render a final decision. 3. You conduct original hearings on appeals peti- tions. At the hearing you administer oaths, examine witnesses, initiate subpoenas, and record testimony. 4. You analyze the evidence and testimony following the hearing and prepare a final decision. 5. You submit the decision to the Board of Appeals for its approval. The Board members review all your work once it is in its final form and, when necessary, provide research assistance and direction. 6. If necessary, you initiate special assessments, investigations and audits whenever the taxpayer's accounting methods or reporting areas appear questionable or suspicious. 7. You prepare a monthly production report for submission to the supervising Board member and to the Secretary of the Board. 8. You advise Board personnel in the review and analysis of the law, regulations and rulings of the various tax acts as well as in the conduct of hearings. Although this is not a comprehensive list of your duties as a Hearing Examiner I, it provides a fair represen- tation of the several areas over which you have jurisdiction. Notably, you have not provided us with data that would indicate you are an attorney or that you intend to practice law upon your departure from state employment, Therefore, we will not address this question or the possible ramifica- tions of the application of Section 3(e), discussed below, to members of the bar. Mr. Scott H. Silverstine April 7, 1982 Page 3 Discussion: As a Hearing Examiner T, you were a "public employee" subject to the provisions of the Ethics Act, 65 P.S. §401 et seq. The Act defines public employee as including an individual employed by the Commonwealth who is responsible for taking or recommending official action of a nonministerial nature with regard to inspecting, licensing, regulating or auditing any person. 65 P.S. §402. Your authority as a hearing examiner your conduct of the original hearings, your decision - making power at that level, and your ability to initiate audits and investiga- tions, brings you within the scope of this definition. Among the restrictions with which you, as a former public employee, must comply is the following: No formal official or public employee shall represent a person, with or without compensation, on any matter before the govermental body with which he has been associated for one year after he leaves that body. 65 P.S. 403(e). The govermental body with which you were associated is the Department of Revenue, including the Board of Appeals. Thus, for the one year period following your retirement From the Commonwealth's employ, you may not represent a taxpayer before the Department's Board of Appeals. See Lamberti, 82- 509. The Commission has held that the concept of "represen- tation" precludes the following activities: 1. Personally appearing before the Department and thus, the Board of Appeals, including but not limited to negotiations on contracts with either; 2. Attempting to influence the Department or its personnel; 3. Participating within this one -year period in any manner or specific case over which you had super- vision or direct involvement, including responsi- bility, while associated with the Department; Mr. Scott H. Silverstine April 7, 1982 Page 4 4. Lobbying, that is, representing the interests of any person before the Department for the one -year period as to legislation, regulations, etc. Morris, 80 -039; Russell, 80 -048; 5. Signing and submitting under your own name correspondence, proposals, contracts or other items to the Department. Despite the restrictions imposed by Section 3(e) you may nevertheless engage in the following activities in relation to the Department within the one -year period: 1. Administer rather than negotiate or re- negotiate any contract that exists or is to be awarded to you or a business with which you are involved or employed as long as that contract is awarded without your name being included as noted in Item 5 above and as long as you comply with the other above- mentioned items. 2. Make general information inquiries of the Depart- ment or any other body, such as the Board of Appeals, as long as no attempt is made to influence these bodies as prohibited above. 3. Use the knowledge and expert_se gained during your tenure as a public employe: in relation to clients or other employers except as outlined above. 4. Appear and represent any person on behalf of any client or employer before any governmental body other than the Department. Conclusion: As a former public employee, your conduct should be guided by this advice. Within the parameters established above, your activities in the year following your retirement on February 18, 1982, are restricted by Section 3(e) of the Ethics Act. Furthermore, you must file a final Financial Interest Statement no later than May 1, 1983; as required by Section 4(a) of the Act as well as file a Statement by May 1, 1982. Mr. Scott H. Silverstine April 17, 1982 Page 6 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. BF /rdp cc: Honorable Robert K. Bloom Joseph C. Bright, Jr., Esq. S% ncerely, Sandra Christianson General 'ounsel