HomeMy WebLinkAbout86-563 BuffingtonMs. Frances A. Buffington
4171 -E King George Drive
Harrisburg, PA 17109
Dear Ms. Buffington:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 21, 1986
ADVICE OF COUNSEL
86 - 563
Re: Former Public Employee; Section 3(e), Staff Assistant, House of
Representatives
This responds to your letter of May 8, 1986, in which you requested
advice from the State Ethics Commission.
Issue: You ask whether the Ethics Act presents any restrictions upon your
potential employment following your termination of service with the
House of Representatives.
Facts: You advise that you are terminating your position with the
Pennsylvania House of Representatives. While working with the House you were
employed as a Staff Assistant with the State House of Representatives
Republican Caucus assigned to the Republican Field Services Staff. In this
position, you generally were responsible and served in the capacity of
preparing publications involving: the analysis of important roll call votes;
hackground papers on selected issues and state government; periodic policy
reports reviewing important issues from a party perspective; a weekly summary
of bills reported from twenty standing House committees; summaries of
important issues before the House; trends and public policy and how the trends
effect the state and a manual regarding how to run district office and handle
constituent problems. In addition to the foregoing, you were involved in
monitoring weekly newspapers regarding items of interest and were further
involved in staff visits to district offices in order to improve constituent
services. An individual in the position in which you serve is also involved
in assisting new legislators and implementing effective constituent service
programs. Each staff member, in this respect, is assigned a number of
freshmen legislators to assist. You advise that in relation to this
particular function, you were not a member of the staff when the current first
term legislators took office and you were, therefore, never assigned any
specific members of the House of Representatives to assist.
Ms. Frances A. Buffington
May 21, 1986
Page 2
In your current position you advise that you report directly to the
director of legislative field services. This individual reports to
Representative Kenneth Brandt who is chairman of the Republican Policy
Committee. You advise that you were never assigned to any specific members as
outlined in the position description.
You will be terminating your service with the Pennsylvania House of
Representatives in order to assume a position as Assistant Director of
Governmental Relation with the Pennsylvania Builders Association. You have,
therefore, requested the advice of the State Ethics Commission as to any
restrictions that may be imposed upon you in light of your former governmental
employment.
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.
As a Staff Assistant for the Office of Field Services Staff and the House
of Representatives, you are a "public employee" within the definition of that
term as set forth in the Ethics Act and the regulations of the Ethics
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 Rouch, 85 -519; Artz, 85 -561.
Consequently, upon termination of this employment, you would become a
"former public employee" 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 House of
Representatives. 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
Ms. Frances A. Buffington
May 21, 1986
Page 3
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 within the Office of
Republican Field Services. Additionally, in light of the fact that this
Office appears to have been under the jurisdiction of Representative Kenneth
Brandt, your governmental body should be expanded to include the Office of
Representative Brandt, including the Republican Policy Committee, hereinafter
the Committee. Thus, the "governmental body" with which you have been
"associated" upon the termination of your employment would be the legislative
Field Services Office, the Office of Representative Brandt, and the Committee.
Therefore, within the first year after you would leave the House of
Representatives, Section 3(e) of the Ethics Act would apply and restrict your
"representation" of persons or new employers vis -a -vis the Legislative Field
Services Office, the Office of Representative Brandt, hereinafter collectively
referred to as the Offices and the Committee.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Offices and the Committee. Likewise,
there is no general limitation on the type of employment in which you may
engage, following your departure from the House of Representatives. 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; Zwi kl , 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:
Ms. Frances A. Buffington
May 21, 1986
Page 4
1. Personal appearances before the governmental body or bodies with
which you have been associated, that is the Offices and the Committee,
including, but not limited to, negotiations or renegotiations on contracts
with the Offices and the Committee;
2. Attempts to influence the Offices and the Committee;
3. Participating in any matters before the Offices and the Committee
over which you had supervision, direct involvement, or responsibility while
employed by the House of Representatives;
4. Lobbying, that i s representing the interests of any person or
employer before the Offices and the Committee 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 Offices and the Committee, constitutes an attempt to influence your former
governmental body. See Kilareski, 80 -054. Therefore, within the first year
after you leave the House of Representatives, you should not engage in the
type of activity outlined above.
You may, assist in the preparation of any documents presented to the
Offices and the Committee so long as you are not identified as the preparer.
You may also counsel any person regarding that person's appearance before the
Offices and the Committee. Once again, however, your activity in this respect
should not be revealed to the Offices and the Committee. Of course, any ban
under the Ethics Act would not prohibit or preclude you from making general
informational inquiries of the Offices and the Committee 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 Offices and the Committee your representation of,
or work for your new - employer.
Finally, 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 or 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).
Ms. Frances A. Buffington
May 21, 1986
Page 5
Conclusion: As a Staff Assistant, you are to be considered a "public
employee" as defined in the Ethics Act. Upon termination of your service with
the Pennsylvania House of Representatives Republican Fields Services Office,
you would become a "former public employee" 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 Republican Fields Services Office, the Office of Representative Brandt,
and the Republican Policy Committee.
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.
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.
Si n
i no
Counsel