HomeMy WebLinkAbout87-571 DallasSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
May 19, 1987
ADVICE OF COUNSEL
Mr. Bruce Dallas
4937 Carlisle Pike 87 -571
Mechanicsburg, PA 17055
Re: Former Public Employee; Section 3(e), Press Secretary Department of
Environmental Resources
Dear Mr. Dallas:
This responds to your letter of May 11, 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 Environmental Resources.
Facts: You have recently terminated your position with the Commonwealth of
Pennsylvania where you served as the press secretary for the Pennsylvania
Department of Environmental Resources. You served in this position from May
1983 through April 16, 1987.
In this position, you were generally responsible for reporting directly
to the secretary of the Department and the deputy secretary for public
liaison. Generally, you were involved in responding to reporter inquiries
concerning DER and the activities of the Department. This responsibility
included direct supervision of a deputy and assistant press secretary and
indirect supervision on media matters of community relations coordinators in
six regional environmental protection offices throughout the Commonwealth.
You were involved in writing and editing press relaeases, statements and
testimony before the state General Assembly and congressional committees
regarding the activities of the Department. You also were involved in
advising the secretary and other DER staff on media response to the Department
activities regarding a wide range of areas including grants, contracts, and
reactions to environmental accidents or incidents. You also were responsible
for advising the Governor's Press Office on the Department's public position
on issues of interest. You approved, through signature, all adio - visual and
photographic equipment purchased by DER personnel.
Mr. Bruce Dallas
May 19, 1987
Page 2
You advise that you have accepted a position as an associate state
director with a national trade association and therefore requested the advice
of the State Ethics Commission regarding what, if any, restrictions are
imposed upon you under the State Ethics Act.
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 press secretary for the Department of Environmental Resources,
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
economic impact is greater than de minimus on the interests of another person.
See Critchlow, No. 159.
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. 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).
Mr. Bruce Dallas
May 19, 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 within the Department.
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 the Department, Section 3(e) of the Ethics
Act would apply and restrict your "representation" of persons or new employers
vis -a -vis the Department. See Schaffer, 85 -585; Roath 87 -556.
The Ethics Act would not affect your ability to appear before agencies or
entities other than with respect to the Department. Likewise, there is no
general limitation on the type of employment in which you may engage,
following your departure from the Commonwealth. 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 Department), including, but not
limited to, negotiations or renegotiations on contracts with the Department;
2. Attempts to influence the Department;
3. Participating in any matters before the Department over which you had
supervision, direct involvement, or responsibility while employed by the
Commonwealth;
Mr. Bruce Dallas
May 19, 1987
Page 4
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 of Pennsylvania, 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 Department. Of course, any ban under the Ethics Act would not prohibit or
preclude you from making general informational inquiries of 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.
In addition to the foregoing, you should be advise that the Ethics Act
also 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).
Mr. Bruce Dallas
May 19, 1987
Page 5
Executive -level State employee is defined as follows:
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.
In the event that your participated in any of the types of activities as
outlined above, then the foregoing provision of law would be applicable to you
as a former public employee.
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 press 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 Environmental Resources, 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 Environmental
Resources.
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.
Mr. Bruce Dallas
May 19, 1987
Page 6
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.
Sin
o
Acting 'General Counsel