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HomeMy WebLinkAbout83-598 LitmanMr. S. David Litman Litman, Litman, Harris & Portnoy, P.A. 1701 Grant Building Pittsburgh, Pennsylvania 15219 -2377 RE: Representation, Restrictions, Section 3(e) Dear Mr. Litman: Mailing Address. STATE ETHICS COMMISSION P.O. BOX 1179 HARRISBURG, PA 17108 TELEPHONE: (717) 783-1610 October 6, 1983 ADVICE OF COUNSEL 83 -598 This responds to your letter of August 10, 1983, in which you, on behalf of Mr. John B. Pensiero, requested advice from the State Ethics Commission. Issue: You ask what restrictions the Ethics Act imposes upon Mr. Pensiero as . a former Assistant Director of Enforcement with the Pennsylvania Liquor Control Board. Facts: As Mr. Pensiero's Attorney, you have written the State Ethics Commission to request advice concerning the lawfulness of Mr. Pensiero's activities with regard to his present employment on a part -time basis with your office. Mr. Pensiero, who had been employed by the Pennsylvania Liquor Control Board (LCB) for 28 years, retired from service with the LCB on December 31, 1982. In 1976, Mr. Pensiero was promoted to the position of Assistant Director of Enforcement, a position which he held until his retirement. As Assistant Director of Enforcement, Mr. Pensiero performed a high -level supervisory role for the LCB's Central Enforcement Bureau in Harrisburg. You state that Mr. Pensiero's duties included supervising enforcement officers throughout the State, making recommendations concerning liquor code enforcement decisions, informing local officers concerning changes and Enforcement Bureau policies, and interpreting Enforcement Bureau policy in individual cases. You also state that Mr. Pensiero's activities for the LCB since 1976 was limited to working for the Enforcement Bureau, and that he had no association for the Licensing Bureau or any other Bureau of the LCB. State Ethics Commission • 305' Finance Building • Harrisburg, Pennsylvania Mr. S. David Litman October 6, 1983 Page 2 Since his retirement, Mr. Pensiero has been employed on a part -time basis by your office. You state that your office has a substantial practice before the LCB, and that you have found it to be helpful to have an employee in Harrisburg. You also write that Mr. Pensiero's activities for your office with the LCB is limited to communicating with Board personnel, making inquiries concerning the status of cases pending before the Board, and making routine deliveries of papers and documents to the proper Board offices. In your discussion of Mr. Pensiero's duties,•you state that his primary area and most important service for your office concerning the LCB is his work in making routine inquiries and gathering information. You state that his job is not restricted to Liquor Control Board cases or matters, but that he handles other work for your office as well. In essence, Mr. Pensiero performs ministerial delivery tasks and makes routine inquiries. He does not negotiate with Board personnel concerning any cases and he makes no attempt to influence the Board's exercise of discretion. You state that since Mr. Pensiero occupied a position of authority and discretion with the Liquor Control Board, he recognizes that he is _a former "public employee" as that term is defined by Section 2 of the Ethics Act, and that he is subject to the prohibitions contained in Section 3(e) of the Act. Discussion: Mr. Pensiero's position as a former Assistant Director of Enforcement for the LCB, he was a "public employee" within the meaning of that term in the State Ethics Act. See 65 P.S. 402. As a former public employee, his conduct is regulated by Section 3(e) of the Act, which provides: (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). In previous Opinions, the Commission has held that the scope of an employee's governmental body is that body with which the former public employee was capable of asserting influence, responsibility, or control; or that body to which he made recommendations. See Ewing, 79 -010; Alexander, 82 -506. In Mr. Pensiero's case, the "governmental body" with which he was associated is the Enforcement Bureau of the Liquor Control Board (hereinafter the Bureau). Thus, Mr. Pensiero may not represent a person before the or before its personnel for a period of one -year from December 31, 1982, the date that Mr. Pensiero terminated his employment with the LCB. Mr. S. David Litman October 6, 1983 Page 3 The Commission has interpreted the term "representation" to preclude, for the one -year period, relative to the governmental body with which Mr. Pensiero was associated here the Bureau, the following activities: A. personally appearing before the Bureau, including but not limited to the appeals process; B. attempting to influence the Bureau or its personnel; C. participating within this one -year period in any manner before the Bureau in a specific case, matter, or contract over which Mr. Pensiero had supervision, direct involvement, or responsibility while employed by the Commonwealth. This prohibition relates to the Bureau only; it does not preclude Mr. Pensiero's participation on all matters over which he had responsibility so long as that participation does not include representation as enunciated herein before the Bureau. D. lobbying, that is, representing the interests of any person before the Bureau for the one -year period as to legislation, regulations, etc. Morris, 80 -039; Russell, 80 -048. While these restrictions apply to Mr. Pensiero for the one -year period following his termination of service with the Commonwealth relative to the Bureau, he may, nevertheless, engage in the following activities even within the one year period: 1. administer, rather than negotiate or re- negotiate, any contract or proposal that exists or is to be awarded to Mr. Pensiero's current employer as long as the contract is awarded without his name being included on the proposal (as preparer or otherwise) and is awarded without his personal "representation" as outlined above (A -D). 2. make general informational inquiries of the Bureau or LCB as long as no attempt is being made to influence the Bureau as prohibited above. 3. utilize the knowledge and expertise gained during his tenure as a public employee except as outlined above. 4. appear and represent any person on behalf of any client or new employer before any governmental body other than the Bureau. Mr. S. David Litman October 6, 1983 Page 4 You should be aware, as discussed above, that whether or not Mr. Pensiero is personally precluded from representing a client before the Bureau, that restriction is personal to Mr. Pensiero and does not extend to other members of your firm. Morris, 80-039. Your firm and your clients may, therefore, receive the benefit of Mr. Pensiero's expertise even though he may not represent your firm or any of your clients personally before the Bureau. Conclusion: Upon Mr. Pensiero's termination of service with,the Commonwealth, specifically, the Liquor Control Board Enforcement Bureau, he became a "former public employee" subject to the restrictions as set forth in the Ethics Act. His conduct should be governed by this Advice, and he should take note of both the prohibited and allowable activities discussed above. Additionally, as a former public employee, Mr. Penseiero must file a Financial Interest Statement for each year that he held office and for the year following his termination of service. Thus, a Statement of Financial Interest should be filed no later than May 1, 1984, which covers the calendar year 1982 and represents the filing required for the year following his termination of service. 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. CW /rdp 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. Sincerely, dra S. General Coun el stianson