HomeMy WebLinkAbout86-635 BarberThe Honorable James D. Barber
House of Representatives
Commonwealth of Pennsylvania
4085 Lancaster Avenue
Philadelphia, PA 19104
Mailing Address:
STATE ETHICS COMMISSION
P.O. BOX L147U
HARRISBURG, PA 17108
TELEPHONE: (717) 783 -1610
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December 16, 1986
ADVICE OF COUNSEL
86 -635
Re: Representation, Section 3(e), Legislator
Dear Representative Barber:
This responds to your letter of November 20, 1986, wherein you requested
the Advice of the State Ethics Commission.
Issue: What restrictions are imposed upon you under the Ethics Act following
your departure from service in the Pennsylvania House of Representatives.
Facts: You have advised that you will be terminating your service as a member
of the Pennsylvania House of Representatives and will be establishing a
private consulting firm. This firm will be designed to provide technical,
legal, accounting and other related services. Your term of office ends
November 30, 1986. For the past 7 years you have served as Chairman of the
House of Representatives' Health and Welfare Committee. As chairman, your
responsibilities have included interaction primarily with the Departments of
Public Welfare, Health, Aging and State regarding legislative and regulatory
review matters. You also serve on the House of Representatives' Policy
Committee. You have requested the advice of the State Ethics Commission
regarding any restrictions that would be placed upon you within the purview of
the State Ethics Act in relation to your future endeavors.
Discussion: As an elected member of the Pennsylvania House of Representatives
you were a "public official" as that term is defined in the Ethics Act. See
Section 2 of the Ethics Act, 65 P.S. 402. As such, upon leaving office you
became a "former public official." Your conduct, therefore, will be governed
by Section 3(e) of the Ethics Act as follows:
State Ethics Commission • 308 Finance Building • Harrisburg, Pennsylvania
The Honorable James D. Barber
December 16, 1986
Page 2
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(e).
As a former public official, the restrictions which you will be required
to observe are limited to the one -year period following the end of your term
of office. This is one calendar year and the restrictions to be discussed
below should be observed during that entire period. The Ethics Act imposes no
specific restrictions on the type of employment you may accept or the
occupation which you may pursue following your service with the Commonwealth.
Rather, as it can be seen from Section 3(e), the Ethics Act restricts your
activities insofar as they may constitute "representation" before the
"governmental body" with which you have been associated.
First, we should discuss the scope and extent of the term "governmental
body" with which you may have been "associated" while serving with the House
of Representatives, hereinafter the House. The Commission has previously
reviewed this ,question and issued opinions which indicate that the
"governmental body" with which a member of the House is associated includes
the House itself, any entity on which the member served as ex officio member
and any entity on which the member served by virtue of legislative
appointment. See, Seltzer, 80 -004; Goebel, 80 -045; Geesey, 80 -046; and
Geesey, 80 -057.
The issue as to whether you would be restricted in appearing or
representing any individual before a Commonwealth department set forth in the
previous section of this advice has been reviewed by the Commonwealth Court of
Pennsylvania in Kury v. State Ethics Commission, 62 Pa. Commw. Ct. 174, 435
A.2d 940, (1981). In that opinion, it was ruled by the Commonwealth Court of
Pennsylvania that the governmental body of a former member of the Pennsylvania
State Senate would not include the departments of the Commonwealth of
Pennsylvania with which that individual dealt with as a result of his
chairmanship of a State Senate committee. As such, there would appear to be
no restriction upon your future dealings with the departments identified in
your letter of request. If, however, you served as a member of any specific
board, bureau or as a result of your legislative position on the commission,
then additional restrictions may apply as noted above.
Based upon the foregoing, the restrictions outlined in Section 3(e) of
the Act apply to your "representation" of any person or entity before the
House and the committees of which you were a member.
The Honorable James D. Barber
December 16, 1986
Page 3
The Commission has also had many opportunities to consider the scope and
nature of the term "representation." The Commission, in its regulations, has
defined the term "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.
Further, opinions of the Commission indicate that the Commission has held
that the type of representation prohibited by Section 3(e) includes:
1. personal appearances before the governmental body with which you were
associated, in this case the House and the committees on which you
served (by virtue of your House membership). See, Morris, 80 -039;
2. attempts to influence that governmental body;
3. participating in any manner before this body in any case or matter
over which you had supervision, direct involvement, or responsibility
while serving with the House;
4. lobbying, that is representing the interests of any person before the
House to influence that body in relation to legislation, regulations,
etc.; and,
5. signing and submitting under your own name bids or proposals, as well
as listing your name as preparer or the person providing technical
assistance for the proposals that are submitted to the body with
which you were associated. See, Dalton, 80 -056 and Kilareski,
80 -054.
Notwithstanding the aforementioned restrictions, opinions of the
Commission indicate that a former public official may nevertheless engage in
the following activities;
A. You may appear in third forums such as state or federal court or
before any other governmental body other than the govrnmental body
with which you may have been associated;
B. You may make general informational inquiries of the governmental body
with which you have been associated if these inquiries are of the
same nature or similar to that made by the public.
The Honorable James D. Barber
December 16, 1986
Page 4
C. You may utilize the knowledge and expertise gained during your tenure
as a public official except as set forth in numbers 1 through 5
above.
D. You may administer a contract that has been awarded or negotiated
between your former governmental body and any new employer or new
corporation as long as the contract was awarded in accordance with
the above restrictions (see No. 1 and No. 5 above, in particular),
and assuming that you have not attempted to negotiate or
re- negotiate the terms or conditions of the contract.
Other than the foregoing, there is no inherent restriction on the type of
employment that you may accept. Additionally, the restrictions outlined above
are personal to you and do not extend to any other members of any firm,
business, corporation, etc., with which you may be associated following your
departure from the House.
Conclusion: During the first (calendar) year folllowing your termination of
service with the Commonwealth you must observe the restrictions upon your
ability to "represent" any person before the governmental bodies with which
you have been associated as those terms and restrictions are outlined above.
Should you have any further specific questions about permissible or prohibited
conduct, please feel free to contact us again.
Also, as a "former public official" we remind you that you must file a
Financial Interest Statement for the year after you leave office.
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 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.
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 • - y,
John -. Contino
General Counsel