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HomeMy WebLinkAbout87-544 BaerSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 15, 1987 ADVICE OF COUNSEL 87 -544 William C. Baer Senate Post Office The State Capitol Harrisburg, PA 17120 -0030 Re: Former Public Employee; Section 3(e), Executive Director, Office of State Senator Dear Mr. Baer: This responds to your letter of March 26, 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 State Senate. Facts: You currently are employed as the Executive Director to State Senator Tim Shaffer from the 21st Senatorial District. In this position you serve as the Senator's staff advisor, supervising other staff members in both Harrisburg and District Offices. Generally, this is highly responsible administrative work and an employee in this classification performs a variety of functions for the State Senator. In this position, you assume a lead role regarding the execution of functions and in assisting the Senator to discharges responsibilities. You manage and administer the Senator's office and you serve as his principle staff advisor. You supervise the review and processing of applicable fiscal documents relating to the Senator and provide liaison services between other legislative leaders, members and other governmental agencies. In the absence, or at the request of the Senator you also will meet with constituents, concerned citizens and lobbyist. You provide project assistance to cities, boroughs, townships and counties within the senatorial district. You also serve as executive director to the Community and Economic Development committee, which is chaired by Senator Shaffer. You have requested the advice of the State Ethics Comission regarding any prohibitions that would be applicable to you upon your termination of service with the Pennsylvania State Senate. 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. William C. Baer April 15, 1987 Page 2 As a Executive Director for Senator Shaffer and the Community and Economic Development Committee of -the State Senate, 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 Buffington, 86 -008. 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 State Senate. 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 he 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 Kur vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (19:1). 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 Senator Shaffer and with the Community and Economic Development Committee chair by Senator Shaffer. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the office of Senator Shaffer, hereinafter the Office as well as the Community and Economic Development Committee hereinafter the Committee. 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 and the Committee. William C. Baer April 15, 1987 Page 3 The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the the Office and the Committee. 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 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 Office and the Committee), including, but not limited to, negotiations or renegotiations on contracts with the the Office and the Committee; 2. Attempts to influence the Office and the Committee; 3. Participating in any matters before the Office and the Committee over which you had supervision, direct involvement, or responsibility while employed by the Senate; 4. Lobbying, that is representing the interests of any person or employer before the Office and the Committee in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. William C. Baer April 15, 1987 Page 4 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 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 Senate, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to the Office 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 Office and the Committee. Once again, however, your activity in this respect should not be revealed to the the Office and the Committee. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office 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 the Office 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 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). Conclusion: As a Executive Director for a State Senator and a Senate Committee, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the State Senate, 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 office of Senator Shaffer, and the Community and Economic Development 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. William C. Baer April 15, 1987 Page 5 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. 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. S . ontino Ac ing General Counsel