HomeMy WebLinkAbout87-555 NeuSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 4, 1987
ADVICE OF COUNSEL
Mr. Carl F. (Rick) Neu
923 North Third Street, Apt. #2 87-555
Harrisburg, PA 17102
R;,: Former Public Employee; Section 3(e), Special Assistant, Pennsylvania
Department of Labor and Industry
Dear Mr, Neu:
This responds to your letter of April 16, 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 24, 1987 you will be terminating
your Pennsylvania Department of Labor and Industry to take auposiitionowithtthe
Forum for Scientific Excellence an environmental consulting firm. While
employed by the Pennsylvania Department of Labor and Industry you served in
serveral positions. From 1983 until January 5, 1987 you served as the special
assistant to the secretary of labor and industry. In this
position
classified as an administrative officer and you were generally resp nsible
directing a departmental program of moderate scope. Specifically,
position as assistant to the secretary, you performed tof in your
res
administrative duties and conducting and coordinating special projects
assignments. You were responsible for representing the secretary at various
committee meetings and public functions and also were responsible for briefing
the secretary of labor and industry on events occuring at such meetings and
functions. You were responsible for meeting at the secretary's direction with
industrialists, labor leaders, committee leaders, federal and state officials,
legislators and subordinate administrative heads in order to obtain
information necessary in the response to questions or problems. You were the
secretary's representative at conferences and meetings involving the
presentation of departmental plans and interdepartmental work programs. You
also were responsible, as assigned, to conduct investigations of special and
sensitive problems brought to the secretary's attention. You gathered and
evaluated confidential and relative data and facts, and developed recommended
courses of actions for the secretary to consider. You prepared and
Mr. Carl F. (Rick) Neu
May 4, 1987
Page 2
coordinated the preparation of reports for the secretary and provided
assistance to program managers in the department by explaining the secretary's
goals and objectives and other requirements. You also performed other related
duties as required.
In addition to the foregoing, you have advised that you also served in
the Department of Labor and Industry Right to Know office from January 1987
until the date of your termination. In this position you were responsible to
updating the present hazardous substance list and reviewing the telephone and
computer systems utilized internally in that office.
In your new position with the Forum for Scientific Excellence, you will
be assisting non - manufacturing and manufacturing firms in relation to
compliance with the Pennsylvania Right to Know Law. You advise that your
duties with your new employer will involve limited direct interaction with the
Right to Know office. You advise that you may need to contact that office for
clarification on the law and regulations. Additionally, you have indicated
that your new employer may decide to bid on various Right to Know office
contracts if such developed. You have requested the advice of the State
Ethics Commission regarding the extent of Ethics At limitations upon you
after your termination of service 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 a special assistant to the secretary for the Pennsylvania Department
of Labor and Industry, hereinafter the Department, 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
econJnic impact is greater than de minimus on the interests of another person.
See Iters, 86 -633; Pierce, 85 -536.
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:
Mr. Carl F. (Rick) Neu
May 4, 1987
Page 3
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. 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 in the Department including all
bureaus, sections, divisions and offices therein. Thus, the "governmental
body" with which you have been "associated" upon the termination of your
employment would be the Department. Therefore, within the first year after
you would leave Commonwealth service, Section 3(e) of the Ethics Act would
apply and restrict your "representation" of persons or new employers vis -a -vis
the Department.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the the Department. Likewise, there is no
general limitation on the type of employment in which you may engage,
following your departure from the Commonwealth of Pennsylvania. 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:
Mr. Carl F. (Rick) Neu
May 4, 1987
Page 4
Section 1.1. Definitions.
Representation - -- Any act on behalf of any person
including but not limited to the .ollowing 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 Department), including, but not
limited to, negotiations or renegotiations on contracts with the the
Department;
2. Attempts to influence the Department;
3. Participating in any matters before the Department over which
you
supervision, direct involvement, or responsibility while employed by the had
Commonwealth;
4. Lobbying, that is representing the interests of any person or
employer before the Department 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 Department, constitutes an attempt to influence your former governmental
body. See Kilareski, 80 -054. Therefore, within the first year after you
leave the Commonwealth, you should not engage in the type of activity outlined
above.
You may, assist in the preparation of any documents presented to the
Department so long as you are not identified as the preparer. You may also
counsel any person regarding that person's appearance before the Department.
Once again, however, your activity in this respect should not be revealed to
the the Department. Of course, any ban under the Ethics Act would not
prohibit or preclude you from making general informational inquiries of the
the Department 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
Department your representation of, or work for your new employer.
Mr. Carl F. (Rick) Neu
May 4, 1987
Page 5
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.
In addition to the foregoing the Ethics Act provides as follows:
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).
The definition of executive -level State employee as set forth in the Ethics
Act provides:
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.
If you have to any extent participated in activity as outlined in the above
provision of the State Ethics Act, then, you would be required to comply with
the Act as set forth above.
Mr. Carl F. (Rick) Neu
May 4, 1987
Page 6
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 special assistant to the secretary, you are to be considered
a "public employee" as defined in the Ethics Act. Upon termination of your
service with the Pennsylvania 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 Department of
Labor and Industry including all divisions, sections, bureaus and offices
therein.
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.
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,,
Sinc
`dohn J. Conti o
'%' Acting'General Counsel