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HomeMy WebLinkAbout87-535 KablachJoseph M. Kablach 5003 Hillsdale Avenue Erie, PA 16509 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 1, 1987 ADVICE OF COUNSEL 87 -535 Re: Former Public Employee; Section 3(e), Unemployment Compensation Appeals Referee Dear Mr. Kablach: This responds to your letter of March 20, 1987, 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 Department of Labor and Industry. Facts: Effective April 29, 1987 you will be terminating your employment with the Pennsylvania Department of Labor and Industry where you serve as an Unemployment Compensation Appeals Referee for the Unemployment Compensation Board of Review. You indicate that you will be initiating a consultant business through which you will generally provide services relating to the representation of claimants or employers at unemployment compensation appeal hearings before referees and the Unemployment Compensation Board of Review. Generally, in your position as an Unemployment Compensation Appeals Referee, you were responsible for the scheduling and conduct of quasi - judicial hearings and the rendering of decisions in relation to unemployment compensation claims. The appeals referee is responsible for the proper conduct of hearings and the disposition of appeals. Duties in this respect include administering oaths, hearing testimony and obtaining evidence necessary to render written decisions. Work may include providing advice and assistance to appeals referee trainees and demonstrating proper adjudication methods and techniques in actual appeal situations. Supervision is exercised over hearing stenographers and clerical employees. Duties also involve researching cases and preparing decisions for consideration of the Unemployment Compensation Board of Review. Decisions on appeal are subject to review by the Unemployment Compensation Board of Review. In addition to the foregoing, you were also responsible for selection of cases to be heard as representative samples in complex situations. You also served in an administrative capacity in relation to certain personnel matters regarding individuals under your supervision. Joseph M. Kalbach April 1, 1987 Page 2 You have requested the advice of the State Ethics Commission regarding what, if any, restrictions are placed upon you within the purview of the State Ethics Act following your termination of employment with the Pennsylvania Department of Labor and Industry. 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 Unemployment Compensation Appeals Referee for the Unemployment Compensation Board of Review in the Department of Labor and Industry, 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 Fahey, 85 -504. 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 Department of Labor and Industry, hereinafter the Department. 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). Joseph M. Kalbach April 1, 1987 Page 3 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 in the Department's Unemployment Compensation Board of Review including the office of the referees. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Unemployment Compensation Board of Review including the Offices of the Referees, hereinafter collectively referred to as the Board. Therefore, within the first year after you would leave the Department of Labor and Industry, hereinafter the Department, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis-a-vis the Board. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Board. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department. 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 Board), including, but not limited to, negotiations or renegotiations on contracts with the Board; 2. Attempts to influence the Board; Joseph M. Kalbach April 1, 1987 Page 4 3. Participating in any matters before the Board over which you had supervision, direct involvement, or responsibility while employed by the Department; 4. Lobbying, that is representing the interests of any person or ' employer before the Board 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 Board, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Department, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Board so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Board. Once again, however, your activity in this respect should not be revealed to the Board. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Board 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 Board 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 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). Joseph M. Kalbach April 1, 1987 Page 5 Conclusion: As an Unemployment Compensation Appeals Referee, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Department of Labor and Industry, 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 Unemployment Compensation Board of Review including the offices of the appeal referees. 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 reauestor 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 disagr with this Advice or if you any reason to challenge same, you may request that the full ;ommision review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from Commission will be isaued. Any such appeal must be made, in writing, to the Commission within 15 days of service of this Advice pursuant 51 Pa. Code 2.12. ohn J. NE;ti nt i n General Counsel