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HomeMy WebLinkAbout86-633 PetersMr. Jeffrey R. Peters Administrative Assistant Office of the Lieutenant Governor Harrisburg, PA 17120 -0002 Dear Mr. Peters: Meiling Address: STATE ETHICS COMMISSION P.O. BOX 11470 HARRISBURG, PA 17108 TELEPHONE: (717) 783 -1610 December 12, 1986 ADVICE OF COUNSEL • 86 -633 Re: Former Public Employee; Section 3(e), Administrative Assistant, Lieutenant Governor This responds to your letter of November 19, 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 Office of the Lieutenant Governor. Facts: You advise that you are currently employed by the Office of the Lieutenant Governor as an Administrative Assistant. You are planning to terminate your service with the Commonwealth of Pennsylvania and, as such, you have requested the advice of the State Ethics Commission regarding any restrictions that would be applicable to you under the provisions of the State Ethics Act. In your position, as an Administrative Assistant, you are responsible, generally, for policy and legislative review on behalf of the Lieutenant Governor. This work involves the coordination of issues, development of research by staff, as well as the preparation of policy materials. You act as a liaison with agencies under the direction of the Lieutenant Governor including the Governor's Energy Council, the Pennsylvania Emergency Management Agency and the Board of. Pardons. You are also responsible for the coordination of the Lieutenant Governor's schedule, including approval of invitations and the scheduling of events and preparation of briefing materials. We have reviewed your position classification and have incorporated that document herein by reference. State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania Mr. Jeffrey R. Peters December 12, 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 an Administrative Assistant for the Lieutenant Governor, you are to be 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. §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, Pierce, 85 -536; Myers, 84 -609. 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 Office of the Lieutenant Governor. 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 within the Office of Lieutenant Governor. Thus, the• "governmental body" with which you have been "associated" upon the termination of your employment would be the Office of the Lieutenant Governor, hereinafter the Office. Therefore, within the first year after you would leave the Office, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Office. Ir. Jeffrey R. Peters December 12, 1986 Page 3 The Ethics Act would not affect your ability 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 Commonwealth service. We do note, however, that the conflicts of interests 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 t� 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 Office), including, but 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 by the Commonwealth; 4. Lobbying, that is representing the interests of any person or employer before the Office 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 Office, constitutes an attempt to influence your former governmental body. See, Kilareski, 80 -054. Therefore, within the first year after you leave the Office, you should not engage in the type of activity outlined above. Mr. Jeffrey R. Peters December 12, 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 be revealed to the Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office 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 Office your representation of, or work for your new employer. In addition to the foregoing, and in order to be complete, you should also be aware of the special provisions of the Ethics Act relating to executive -level employees. In this respect the Act provides that: 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). 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. Mr. Jeffrey R. Peters December 12, 1986 Page 5 In your position you appear to be within this definition. Thus, 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 and Commonwealth funds were employed as an inducement, therefore, you would be prohibited for a period of two years from the date of your termination from being employed by that corporation. 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 Secti prohibit any public employee or publi employment if said position has been the official conduct of the employee governmental body, was influenced by on-403(b) of the State Ethics Act would c official from accepting a position of offered based upon the understanding that or official, while working for his former such offer. See 65 P.S. §403(b). Conclusion: As an Administrative Assistant, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Office of the Lieutenant Governor, you would become a " former public employee" subject to the restrictions imposed by Section 3(e) cf 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 Office of the Lieutenant Governor. You also must comply with Section 3(g) of the Act as set forth 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. 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. Mr. Jeffrey R. Peters December 12, 1986 Page 6 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.