HomeMy WebLinkAbout82-597 GoldhaberA. Nathaniel Goldhaber
Sleepy Hollow Farm
RD #2
Etters, PA 17319
Dear Mr. Goldhaber:
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1 179
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
December 15, 1982
ADVICE OF COUNSEL
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
82 -597
RE: Restrictions, Representation, Governor's Energy Council, Department of
Commerce
This responds to your letter of June 30, 1982, in which you requested
advice from the State Ethics Commission.
Issue: You ask what, if any, restrictions the Ethics Act imposes upon you
upon retirement from government service with regard to subsequent employment
by a private corporation and future contact with various state bureaus,
councils, and officials?
Facts: After approximately 3 1/2 years of Commonwealth employment you
recently left the Commonwealth to accept a position as Executive
Vice- President of a New York -based company with major assets in the form of
coal - loading facilities in the Philadelphia area. The Company, Energy
Terminals Incorporated, has neither received nor applied for grants, loans, or
other public funds within the Commonwealth and has no plans to apply for such
funds from the Commonwealth at this time.
While employed by the Commonwealth, from January, 1979 through December,
1981 you served as a Special Assistant to Lieutenant Governor Scranton and
your primary responsiblity was to act as liason between the Lieutenant
Governor's Office and the Governor's Energy Council (GEC). You had no
policy - making authority over grant - making by GEC or any other GEC financial
operations. In December, 1981, you joined the GEC Bureau of Policy as a "Coal
Specialist" with your primary concern being the promotion of Pennsylvania Coal
within the state.
A. Nathaniel Goldhaber
December 15, 1982
Page 2
In April, 1982, GEC entered into an agreement with the Department of
Commerce, hereinafter, Commerce, which allowed you to serve half -time in each
agency although you technically remained a full -time GEC employee. You served
from April through the end of June, 1982, under this arrangement as a
part -time Special Assistant to Franklin Mohney, Executive Deputy Secretary
within Commerce. Your functions at Commerce were to assist in the Domestic
and Internation Promotion of Pennsylvania Coal. You also did staff work for
the Pennsylvania Coal Group /Task Force. In these positions you had no direct
authority over Commerce or the Coal Group /Task Force or their staffs in
general. In the course of your work you had no direct or indirect influence
regarding the grants or loans or use of public funds.
Discussion: We assume that while employed by the Commonwealth you were a
"public employee" and therefore, upon termination of your service with the
state, you became a "former public employee." The Ethics Act regulates both
the conduct of both present and former public employees to assure the public
the independence and impartiality of its servants. Therefore, you must be
aware of the restrictions upon representation which relate to "former public
employees" delineated by Section 3(e) of the Ethics Act which provides as
follows:
(e) 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
associated for one year after he leaves that body.
65 P.S. 403(e).
With this restriction in mind a discussion of what the term
"representation" means is important. In general, the Commission has
determined that the prohibitions of Section 3(e) and the term "represenation"
extends to such things as:
1. Personal appearances before the governmental body with which you were
associated, including but not limited to negotiations on contracts with
the authority;
2. Attempts to influence that governmental body;
3. Participation in any manner in any case over which you had supervision,
direct involvement, or responsibility while employed by the governmental
body;
4. Lobbying, that is representing the interest of any person before that
governmental body to influence the body in relation to legislation,
regulations, etc. See Kilareski, 80 -054.
A. Nathaniel Goldhaber
December 15, 1982
Page 3
Opinions of the Commission indicate that a former public employee may appear
in a third forum such as state or federal court and may make general
informational inquiries of the nature made by the public to their former
governmental body. In addition, they may generally utilize the knowledge and
expertise gained in their tenure as public employees except as set forth
above. Thus, in answer to your specific questions it would not be
inappropriate for you to serve as an unpaid transition /resource to your
successor or to serve on an unpaid basis to public advisory groups to the
Commonwealth on Coal related issues in general. In order to assist in
accomplishing important objectives for coal promotion you could freely contact
any officer within the Commonwealth to discuss these matters so long as these
discussions and contacts were not designed to renew or to the benefit of your
new employer.
Indeed, any restrictions relating to representation as outlined above
relate only to the "governmental bodies" with which you may have been
associated while employed by the Commonwealth. Any restrictions relate only
to those governmental bodies and any contacts with members of the legislative,
executive branches or other Commonwealth departments or employees are not
restricted. Likewise, purely social or informtional context with persons in
the governmental bodies with which you are associated or otherwise are not
restricted.
It remains to be determined exactly which "governmental bodies" you are
to be deemed to have been "associated with" and to whom restrictions would
apply. Under the facts as you present them, we find that the governmental
bodies with which you have been associated are the GEC and the Office of the
Executive Deputy Secretary of Commerce (Franklin Mohney) and his office and
subordinate staff. Thus, the restrictions outlined and enumerated above must
be observed in relation to the Governor's Energy Council, including the
Lieutenant Governor, and the Office of the Executive Deputy Secretary of
Commerce. If your contacts with this groups or individuals or offices is
merely designed to discuss general problems or issues and there is no
possibility that your new employer will be directly benefitted by such general
discussions, as stated above, this would not fall within the scope of
restricted, representation." You should be aware, however, that in relation
to these identifiable governmental bodies with which you have been associated,
the term "negotiation on contracts" includes the prohibition that you may not
prepare and as preparer sign bid proposals to be presented on behalf of your
new employer. In addition, your name may not appear as an employee who will
serve under that contract or proposal if that proposal is to be submitted to
any of these identifiable governmental bodies. You may however, assist in
preparing these items when another person signs as preparer and you may
administer a contract once it has been secured or approved, so long as your
name does not appear on the submission or proposal or bid as discussed
herein.
A. Nathaniel Goldhaber
December 15, 1982
Page 4
Conclusion: The specific responses as to your questions are as follows:
1. You may assist on an unpaid basis in the transition of your successor as
this does not fall within the scope of prohibited "representation."
2. You may serve as an unpaid member of a public advisory group to the
Commonwealth on coal so long as the advice rendered is of a general
nature and does not entail "representation" as outlined above nor enure
to the specific benefit of your new employer.
3. If projects enure directly to the benefit of your new employer you may
not "represent" that new employer before the Govenor's Energy Council
including the Lieutenant Governor nor before the Office of the or the
Staff of the Executive Deputy Secretary for Commerce. Contacts with
these persons or other persons within the legislative or executive
branches of government on projects which do not enure to the benefit of
your specific employer but relate to transportation or Coal topics, in
general, may be undertaken freely.
4. You may not undertake any "representation" before the governmental bodies
with which you had been associated, herein identified as Governor's
Energy Counsel and the office and staff of the Executive Secretary for
Commerce and the term "representation" as outlined above. Contacts with
other bureaus within Commerce or other members of the legislative or
executive branches of government may be undertaken freely and do not
constitute prohibited or restricted "representation" within the meaning
of Section 3(e) of the Ethics Act.
5. Contact with any individual employed by the Commonwealth on a purely
social or informational basis would not necessarily be prohibited by the
Ethics Act. As noted above, informational inquiries, even of those
governmental bodies with which you had been associated is not precluded
per se. Caution and discretion must be exercised in relation to the
extent of such "informational" inquiries and those must be restricted to
conform to the requirements of the term "represenation" which would
restrict your activities in relation to the Governor's Energy Council and
the office and staff of the Executive Deputy Secretary for Commerce in
the following areas:
1. Personally appearing before these governmental bodies;
2. Attempting to influence these governmental bodies;
A. Nathaniel Goldhaber
December 15, 1982
Page 5
3. Participating in any manner, before these governmental bodies on a
contract or matter over which you had supervision, direct
involvement or responsibility while you were associated with these
bodies except that you may administer any contract that is awarded
in accordance with the limitations expressed herein;
4. Preparing bid proposals to be submitted to these bodies where that
preparation includes your signing these proposals and /or being
identified as the person performing or participating in the propose
project; and
5. Attempting to influence your former governmental bodies, including
lobbying, that is representing the interest of any person as to
legislation, regulations, etc.
These prohibitions will pertain for the one year period following the
date you terminated your employment with the Commonwealth.
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 will be scheduled and a formal
Opinion from the Commission will be issued. Any such appeal must be made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.12.
SSC /rdp
Sincerely,
Sandra S. C istianson
General Counsel
cc: Jay C. Waldman, Executive Assistant to the Governor
Franklin H. Mohney, Executive Deputy Secretary