HomeMy WebLinkAbout86-544 FaberMr. W. Russell Faber
Roorn 35U, Main Capitol bldg.
Harrisburg, PA 111'LU
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
Apri L9, 198b
ADVICE OF CUUWSLL
86 -544
Re: Former Public Utficial; Section 3(e), Chief Clerk, State Senate
Dear Mr. Faber:
This responds to your letter of April 8, 198b, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment f ollowiny your termination of service with the
Pennsylvania State Senate.
Facts: You currently serve as the Chief Clerk to the Pennsylvania State
Senate. You crave served in that capacity since June 3U, 1981. The Chief
Clerk of the State Senate is an elected officer of the Senate who is the Chief
Fiscal Officer of the Senate. In this capacity, you perform statutory duties
which include the preparation of all payrolls; the pre -audit of all vouchers
submitted for reimbursement or payment from any appropriation made to the
Senate. Additional you are responsible for the day -to -day financial
functions of the Senate and any related duties that may be assiyned by the
President Pro Ternpore of the Senate or the Senate Committee on management
operations. You are involved in rnaintaininy central personnel files of all
senate employees. You also advise that the following duties and
responsibilities are also under the jurisdiction of your office: procurement,
facilities manayement, chamber area personnel, cleaning personnel, storeroom
and supplies operations, mailroom operations, and liaison for the Senate with
the Department of tieneral Services reyardiny the Capitol Extension Project.
In addition to the foreyoiny, you serve as the Secretary to the Committee on
Manayement Uperations. The Senate Committee on Ilanayernent Uperations is
yenerally responsible for the preparation and adoption of rules and
regulations reyardiny the personnel policies and procedures in the
Pennsylvania State Senate. You have requested the advice of the State Ethics
Commission reyardiny any restrictions that may be imposed upon you as a former
public employee or official within the purview of the State Ethics Act.
Mr. W. Russell Faber
April 29, 1986
Page 2
Discussion: At the outset, it must be noted that the Ethics Commission may
only address your question within the purview of the Ethics Act. The
Commission may not and will not offer advice with respect to any duties or
obligations that may be imposed by other provisions of law such as the State
Adverse Interest Act or the Governor's Code of Conduct.
As the Chief Clerk for the Pennsylvania State Senate, hereinafter the
Senate, you are to be considered a "public official" within the definition of
that term as set forth in the Ethics Act and the regulations of this
Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon
your job description, which when reviewed on an objective basis, indicates
clearly that you have the power to take or recommend official action of a
non - ministerial nature with respect to contracting, procurement, planning,
inspecting or other activities where the economic impact is greater than de
minimus on the interests of another person. See Mebus, 81 -529.
Consequently, upon termination of this employment, you would become a
"former public official" subject to Section 3(e) of the Ethics Act. Section
3(e) of the Ethics Act provides that:
Section 3. Restricted activities.
(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.
Initially, to answer your request we must identify the "governmental
body" with which you were associated while working with the Senate. Then, we
must review the scope of the prohibitions associated with the concept and term
of "representation ". In this context, the Ethics Commission has previously
ruled that the "governmental body" with which an individual may be deemed to
have been associated during his tenure of public office or employment extends
to those entities where he had influence, responsibility, supervision, or
control. See Ewing, 79 -010. See also Kury vs. Commonwealth of
Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981).
From the description and analysis of your duties and responsibilities and
based upon the facts outlined above, your jurisdiction, responsibility,
influence and control appears to have been exercised generally within the
Senate. This is so, specifically in light of your wide ranging
responsibilities regarding the day -to -day financial function of the State
Senate and your position as the Chief Fiscal Officer for the Senate. Thus,
the "governmental body" with which you have been "associated" upon the
termination of your employment would be the Senate. Therefore, within the
first year after you would leave Commonwealth service, Section 3(e) of the
Ethics Act would apply and restrict your "representation" of persons or new
empl oyers vi s-a-vi s the Senate generally.
Mr. W. Russell Faber
April 29, 1986
Page 3
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Senate. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Commonwealth service. We do note, however, that the
conflicts of interest law is primarily concerned with financial conflicts and
violations of the public trust. The intent of the law generally is that
during the term of a person's public employment he must act consistently with
the public trust and upon departure from the public sector, that individual
should not be allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer, treatment or
benefits that may be obtainable only because of his association with his
former public employer. See Anderson, 83 -014; Zwikl, 85 -004.
In respect to the one year representation restriction the Ethics
Commission has promulgated regulations to define "representation" as follows:
Section 1.1. - Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the following activities:
personal appearances, negotiating contracts, lobbying, and
submitting bid or contract proposals which are signed by
or contain the name of the former public official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the term
"representation" as used in Section 3(e) of the Ethics Act to prohibit:
1. Personal appearances before the governmental body or bodies with
which you have been associated, (that is the Senate, including, but not
limited to, negotiations or renegotiations on contracts with the Senate);
2. Attempts to influence the Senate;
3. Participating in any matters before the Senate over which you had
supervision, direct involvement, or responsibility while employed by the
Senate;
4. Lobbying, that is representing the interests of any person or
employer before the Senate in relation to legislation, regulations, etc. See
Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or bid, or listing your name as the person who will provide technical
assistance on such proposal, document, or bid, if submitted to or reviewed by
the Senate, constitutes an attempt to influence your former governmental body.
See Ki l a reski , 80 -054. Therefore, within the first year after you leave the
Senate, you should not engage in the type of activity outlined above.
Mr. W. Russell Faber
April 29, 1986
Page 4
You may, assist in the preparation of any documents presented to the
Senate so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Senate. Once
again, however, your activity in this respect should not be revealed to the
Senate. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Senate to
secure information which is available to the general public. See Cutt,
79 -023. This, of course, must not be done in an effort to indirectly
influence these entities or to otherwise make known to the Senate your
representation of, or work for your new employer.
The Commission has concluded that if you are administering an existing
contract as opposed to negotiating or renegotiating a contract, your
activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and
Beaser, 81 -538.
Additionally, we note that Section 403(b) of the State Ethics Act would
prohibit any public employee or public official from accepting a position of
employment if said position has been offered based upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced by such offer. See 65 P.S. §403(b).
In addition to the foregoing, we note that Section 3(g) of the State
Ethics Act provides as follows:
Section 3. Restricted activities.
(g) 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 Pennsylvania 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 existent 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 grant or loan of money from the
Commonwealth to the business or corporation recruited or
induced to expand. 65 P.S. 403(g).
Mr. W. Russell Faber
April 29, 1986
Page 5
Executive -level state employee is defined as:
Section 2. Definitions.
"Executive -level State employee." The Governor,
Lieutenant Governor, cabinet members, deputy secretaries,
the Governor's office staff, 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
deicison. 65 P.S. 402.
In reference to the foregoing provision of law, if you are a state
employee who had discretionary powers which may effect the outcome of a state
agency's decision in relation to a private corporation or business or could
otherwise influence the outcome of such decision, you would be a state
employee within the above provision of the State Ethics Act. We note, that
you have indicated that you acted as a liaison between the Senate and the
Department of General Services in relation to the Capitol Extension Project.
If in this position, you exercised powers as set forth in the definition of
Executive -level state employee, then the above provision of law would be
applicable. Thus, if you had such powers and if you have, to any extent,
participated in the recruiting of any corporation to initiate operations, open
a new plant, facility or branch in the Commonwealth or extend existing
facilities, and Commonwealth funds were employed as an enducement therefore,
you would be prohibited for a period of two years from the date of your
termi nation from being employed by that corporation. See Muir, 85 -018,
Nelson, 85 -008.
Conclusion: As the Chief Clerk, you are to be considered a "public official"
as defined in the Ethics Act. Upon termination of your service with the
Pennsylvania State Senate, you would become a "former public official" subject
to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your
conduct should conform to the requirements of the Ethics Act as outlined
above. Your governmental body for the purpose of the one year representation
restriction is the Pennsylvania State Senate. Additionally, if you performed
functions as outlined in the definition of Executive -level state employee as
set forth in the State Ethics Act, then the restrictions regarding
Executive -level state employees would apply as outlined above.
Further, should you terminate your employment or service, as outlined
above, you are reminded that the Ethics Act also requires you to file a
Statement of Financial Interests for the year following your termination of
service.
Mr. W. Russell Faber
April 29, 1986
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 proceedi ng, 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.
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