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HomeMy WebLinkAbout88-544 RubinMr. Arnie Rubin 1922 Spruce Street Philadelphia, PA 19103 Dear Mr. Rubin: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PA 17120 TELEPHONE: (717) 783 -1610 April 12, 1988 ADVICE OF COUNSEL 88 - 544 Re: Former Public Employee; Section 3(e), Commerce Department, Chief of the Business Resource Network This responds to your letter of February 16, 1988, in which you requested advice from the.State Ethics Commission. Issue: Whether there are any restrictions under the Ethics Act upon the former chief of the Business Resource Network of the Department of Commerce from applying for a loan from the Local Development District, a county agency, which in turn would borrow the money from the Pennsylvania Capitol Loan Fund. Facts: You state that you are currently in the position of Chief, Business Resource Network in the Pennsylvania Department of Commerce. After noting that you were in the retail and wholesale book business for fifteen years prior to your governmental service, you state that you would be interested in applying for a loan after you leave the Department of Commerce. You advise that you would apply for the loan from the Local Development District which is a county agency that would borrow the money from the Pennsylvania Capitol Loan Fund. After stating that the Pennsylvania Capitol Loan Fund makes available loans for export development, you advise that part of your operations would entail exploring book exporting. After noting that the loan funds would be disbursed through the Local Development District and not the Department of Commerce and that you have no authority or policy making responsibilities for those loans, you conclude by requesting advice as to whether there would be any conflict under the Ethics Act under these circumstances. Discussion: As a Chief in the Business Resource Network of the Pennsylvania Department of Commerce, you are a "public employee" as that term is defined under the Ethics Act. 65 P.S. §402; 51 Pa. Code §1.1. As such, your conduct is subject to the provisions of the Ethics Act. Mr. Arnie Rubin April 12, 1988 Page 2 Following your termination of employment with the Department of Commerce, you would become a former public employee subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides: 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). The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Department of Commerce. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the Department of Commerce. 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 ha 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, Opinion 83 -014; Zwikl, Opinion 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 of Commerce), including, but not limited to, negotiations or renegotiations on contracts with the Department of Commerce; Mr. Arnie Rubin April 12, 1988 Page 3 2. Attempts to influence the Department of Commerce; 3. Participating in any matters before the Department of Commerce over which you had supervision, direct involvement, or responsibility while employed by the Department of Commerce; 4. Lobbying, that is representing the interests of any person or employer before the Department of Commerce in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 80 -044. In the instant matter, it does not appear under these facts and circumstances that your applying for a loan from the Local Development District which is a county agency would be prohibited by Section 3(e) of the Ethics Act. In this regard, it is noted that the Loan Funds are disbursed through the Local Development District and not the Department of Commerce. Therefore, consistent with Section 3(e) of the Ethics Act, you may following the termination of your employment with the Department of Commerce apply for the loan from the Local Development District. Section 3(b) of the Ethics Act provides: Section 3. Restricted activities. (b) No person shall offer or give to a public official or public employee or candidate for public office or a member of his immediate family or a business with which he is associated, and no public official or public employee or candidate for public office shall solicit or accept, anything of value, including a gift, loan, political contribution, reward, or promise of future employment based on any understanding that the vote, official action, or judgment of the public official or public employee or candidate for public office would be influenced thereby. 65 P.S. 403(b). Section 3(b) of the Ethics Act must be referenced in order to provide a complete response to your inquiry. Under Section 3(b) of the Ethics Act cited above, which a public official or employee must observe, a public official or employee must neither offer nor accept anything of value on the understanding or with the intention that his judgment would be influenced thereby. It is assumed such a situation does not exist here. This Section is referenced not to indicate that any such activity has been or will be undertaken but in an effort to provide a complete response to your inquiry. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Mr. Arnie Rubin April 12, 1988 Page 4 Conclusion: As Chief of the Business Resource Network of the Pennsylvania Department of Commerce, you are a public employee subject to the provisions of the State Ethics Act. Following the termination of your employment, you would become a former public employee subject to the provisions of Section 3(e) of the Ethics Act. Under the facts and circumstances outlined above, you may under Section 3(e) of the Ethics Act apply for a loan from the Local Development District which is a county agency. Lastly, the propriety of your conduct has only been addressed under the Ethics Act. 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. Sincerely, Vincent J. Dopko General Counsel �ti