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HomeMy WebLinkAbout87-599 AlbrightMs. Jeanne Albright c/o Lee. H. Van Valkenburgh Senator Director of Public Affairs Capital Blue Cross 100 Pine Street Harrisburg, PA 17101 Dear Mr. Van Valkenburgh: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 August 6, 1987 ADVICE OF COUNSEL 87 - 599 Re: Former Public Employee; Section 3(e), Legislative Assistant Pennsylvania Senate This responds to your letter of June 15, 1987, in which you requested advice from the State Ethics Commission. Issue: You ask whether the Ethics Act presents any restrictions upon your employment following your termination of service with the Senate. Facts: From 1983 to 1987, you served in the capacity as a Legislative Assistant to Senator F. Joseph Loeper. In your former position, your duties and responsibilities consisted of handling all facets of correspondence with constituents, press releases, updates of legislative matters, organization and distribution of the district newsletter, the attendance of meetings and general legislative research. Specifically, you produced and coordinated the "Senator Joe Loeper Reports" series. Part of your duties entailed working with state agencies and departments, other senatorial offices, the Governor's Office and lobbyists. You also processed motor vehicle work for constituents. You note that you were not involved with any committee work other than agenda typing. You conclude by stating that your duties wre limited to those matters commonly associated with the term "legislative assistant." Senator Lee. H. Van Valkenburgh August 6, 1987 Page 2 Following the termination of your service with the office of Senator Loeper, you accepted the position of Legislative Assistant with Capital Blue Cross on April 6, 1987, and are in the process of registering as a lobbyist for Capital Blue Cross. 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 Averse Interest Act or the Governor's Code of Conduct. As a Legislative Assistant for the Pennsylvania Senate, hereinafter the 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 Steck, 86 -629; Buffington, 86 -003 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(e). Initially, to answer your request, the "governmental body" with which you were associated while working with the Senate, must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation," must be reviewed. 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 Kur vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 1981 . Senator Lee. H. Van Valkenburgh August 6, 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 relation to the office of Senator Loeper, hereinafter the Office. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Office. 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. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Senate. It is noted, 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 "represenation" 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), including, but not limited to, negotiations or renegotiations on contracts with the Office; 2. Attempts to influence the Office; 3. Participating in any matters before the Office over which you had supervision, direct involvement, or responsibility while employed by the Senate; Senator Lee. H. Van Valkenburgh August 6, 1987 Page 4 4. Lobbying, that is representing the interests of any person or employer before the Office 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 Office, 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 so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office. Once again, however, your activity in this respect should not be revealed to the Office. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office 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 Office your respresentation of, or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed t� negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton, 80 -056 and Beaser, 81 -538. Additionally, it is noted 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 Legislative Assistant you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with the Pennsylvania 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 represenation restriction is the Office of Senator Loeper. 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. Senator Lee. H. Van Valkenburgh August 6, 1987 Page 5 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. Sincerely, Vincent J. Dopko General Counsel