HomeMy WebLinkAbout86-629 SteckMailing Address:
STATE ETHICS COMMISSION
P.O. BOX 1
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
Novemher 18, 1Q86
AfVICE OF COUNSEL
•
Mathew d. Steck
2417 Ellerslie Street
Harrisburg, PA 17104
near Mr. Steck:
86 -629
Re: Former Public Employee; Section 3(e), Legislative Assistant, State Senate
This responds to your letter of Octoher 29, 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
Pennsylvania State Senate.
Facts: You advise that you are currently employed as a Research Analyst in
the Office of State Senator Frank A. Pecnra. In this respect, you are
involved in assisting the State Senator in the execution of his official
duties. We have reviewed your position classification, (007), and have
incorporated that document herein by reference. Generally, you perform a wide
variety of legislative support tasks and act with discretion 3n hehalf of the
State Senator. Generally, you conduct research studies that may he directed
to the alleviation of problems concerning constituents, caucus members
other governmental agencies. You also follow through on corrective measures
and actions. You write position papers, speeches and background materials and
deliver speeches and attend puhlic meetings on hehalf of the Senator. As part
of your function, you are required to handle complex and confidential task on
hehalf of the Senator.
In addition to the foregoing, you advise that prior to your current
position you served for two years in the President Pro Tempore's Office of
Legislative Information. Your responsibilities in that position centered upon
constituent casework, and special projects. For a period of six months in
1985, you were employed as acting Executive firector of the Senate Agriculture
and Rural Affairs Committee. In this respect, while you reviewed and analyzed
Stat Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
Mathew J. Steck
November 18, 1986
Page 2
legislation for the committee, you did not designate which legislation should
he acted upon. You terminated your employment with the OLT in Septemher of
1985 and assumed the position with Senator Pecora. You have requested the
advice of the State Ethics Commission regarding any restrictions that might he
imposed upon you within the purview of the State Ethics Act in the event that
you should terminate your employment with the Pennsylvania State Senate.
niscussion: At the outset, it must he noted that the Ethics Commission may
orlv 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 he imposed by other provisions of law.
As a Legislative Assistant for a State Senator, you are to he considered
a "public employee" within the definition of that term as set forth in the
Ethics Act and the regulations of this Commission. 65 P.S. 54112; 51 Pa. Code
61.1. This conclusion is hased upon your joh 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, Evans, R4 -589, Myers, R4 -609, Pouch, 85 -519.
Consequently, upon termination of this employment, you would hecome a
"former puhlic 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 puhlic employee shall represent
a person, with or without compensation, on any matter
before the governmental horsy with which he has heen
associated for one year after he leaves that body.
65 F.S. 403.
From the description and analysis of your duties and responsibilities and
hased upon the facts outlined ahove, your jurisdiction, responsibility,
influence and control appears to have heen exercised within the Office of
State Senator Pecora. Thus, the "governmental body" with which you have heen
"associated" upon the termination of your employment would he the Office of
Senator Pecora, hereinafter the Office. Therefore, within the first year
after you would leave the Senate, Section 3(e) of the Ethics Act would apply
and restrict your "representation" of persons or new employers vis -a -vis the
Office. It appears as though you terminated your association with the OLI and
with the State Senate Agricultrue and Rural Affairs Committee more than one
year ago and, as a result, there would he no further restriction imposed upon
your dealings with those particular entities.
Mathew J. Steck
November 18, 1485
Page
The Fthics Act would not affect your ahility to appear before agencies or
entities other than with respect to the office. Likewise, there is no general
limitation on the type of employment in which you may engage, following your
departure from the Senate. 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 teem of
a person's puhlic employment he must act consistently with the puhlic tust
and upon departure from the public sector, that individual should not
allowed to utilize his association with the puhlic sector, officials or
employees to secure for himself or a new employer, treatment or hens its that
may he ohtainahle only hecause of his association with his former pAWc
employer. See, Anderson, 83-014; Zwikl, 85 -004,
In respect to the one year representation restriction the Ethscs.
Commission has promulgated regulations to define "representation" s rolows:
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including hut not limited to the following activities:
personal appearances, negotiating contracts, lobbying, F.nd
suhmitting hid or contract proposals which are signed hy
or contain the name of the former puhlic official or
public employe. 51 Pa. Code 1.1.
The Commission, in its opinions, has also interpreted the tern
"representation" as used in Section 3(e) of the Ethics Act to pr•ohihit:
1. Personal appearances hefore the governmental hody or hodis °: ith
which you have heen associated, (that is the Office), including, hut not
limited to, negotiations or renegotiations on contracts with the Office;
2. Attempts to influence the Office;
3. Participating in any matters before the Office over which you had
supervision, direct involvement, or responsibility while employed hy the
Senate;
4. Lobbying, that is representing the interests of any person or
employer before the Office in relation to legislation, regulations, etc. lae,
Russell, 80 -048 and Seltzer, 80 -044.
The Commission has also held that preparing and signing a proposal,
document or hid, or listing your name as the person who will provide technical
assistance on such proposal, document, or hid, if submitted to or reviewed hy
the Office, constitutes an attempt to influence your former governmental body.
See, Kilareski, 80 -054. Therefore, within the first year after you leave the
Senate, you should not engage in the type of activity outlined above.
Mathew J. Steck
November 18, 1986
Page 4
You may, assist in the preparation of any documents presented to the
office so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Office. Once
again, however, your activity in this respect should not he revealed, to the
Office. Of course, any han under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of the Office to
secure information which is availahle to the general puhlic. See, Cutt,
79 -023. This, of course, must not he Hone in an effort to indirectly
influence these entities or to otherwise make known to the Office 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 he prohibited hy the Ethics Act. See, Talton, RO -056 and
Reaser, R1 -538.
Additionally, we note that Section 403(h) of the State Ethics Act would
prohibit any puhlic employee or public official from accepting a position of
employment if said position has heen offered hased upon the understanding that
the official conduct of the employee or official, while working for his former
governmental body, was influenced hy such offer. See 65 P.S. 5403(h).
Conclusion: As a Legislative Assistant in the State Senate, you are to he
considered a "puhlic employee" as defined in the Ethics Act. Upon termination
of your service with the Pennsylvania State Senate, you would become a "former
public employee" suhject to the restrictions imposed hy Section 3(e) of the
Ethics Act. As such, your conduct should conform to the requirements of the
Ethics Act as outliners ahove. Your governmental body for the purpose of the
one year representation restriction is the Office of State Senator Frank A.
Pec o ra .
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(q)(ii), this Advice is a complete defense in any
enforcement proceeding initiated hy 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 puhlic record and will he made availahle as such.
Mathew J. Steck
Novemher 18, 1QR6
Page 5
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 hefore the Commission will he scheduled and a formal
Opinion from the Commission will he issued. Any such appeal must he made, in
writing, to the Commission within 15 days of service of this Advice pursuant
to 51 Pa. Code 2.1?,
Si n rely,
John J. ;ont no
rene •. Counsel