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HomeMy WebLinkAbout88-562 LydenMr. Timothy P. Lyden 1146 Loop Drive Harrisburg, PA 17112 Dear Mr. Lyden: STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL May 12, 1988 88 - 562 Re: Former Public Employee; Section 3(e), Research Analyst for Republican Caucus, House of Representatives This responds to your letter of March 30, 1988, 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 House of Representatives. Facts: You advise that you are contemplating resigning from your current position of research analyst with the Republican Caucus of the House of Representatives to take a position as Assistant Director of the Government Relations with the National Federation of Independent Business /Pennsylvania. As a Research Analyst for the Committee on Business and Commerce, hereinafter Committee, you state that your responsibilities include legislative analysis, research and legislative constituent correspondence. You note that you report to Otis W. Littleton, who is the Director of Research as well as to Representative James J. Gallen, Republican Chairman of the Business and Commerce Committee and Representative Samuel E. Hayes, Jr., Republican Whip. The offices of Representative James J. Gallen and Representative Samuel E. Hayes, Jr., will hereinafter be referred to as the Offices. You advise that in your upcoming position, you will be required to perform various functions including lobbying of members of the General Assembly, correspondence with - members of the Federation, legislative analysis and research, contact with other trade associations and administration of the Federation's Political Action Committee. You state that you will report directly to James Buente who is the State Director of the Federation. You conclude by requesting advice under the Ethics Mr. Timothy P. Lyden May 12, 1988 Page 2 Act as to what restrictions would be imposed upon your conduct following your termination of service with the House of Representatives. Discussion: As a Research Analyst for Republican Caucus of the House of Representatives, 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. 5402; 51 Pa. Code S1.1. 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. 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. 5403. Initially, to answer your request it is necessary to identify the "governmental body" with which you were associated while working House of Representatives. 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, Opinion 79 -010. See also Kury v. 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 the Committee and Offices. Thus, the "governmental body" with which you have been "associated" upon the termination of your employment would be the Committee and Offices. Mr. Timothy P. Lyden May 12, 1988 Page 3 Therefore, within the first year after you would leave the House of Representatives, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Committee and Offices. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Committee and Offices. Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from the House of Representatives. 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, Opinion 83 -014; Zwikl, Opinion 85 -004. In respect to the one year representation 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 employee. 51 Pa. Code S1.1. 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 Committee and Offices), including, but not limited to, negotiations or renegotiations on contracts with the Committee and Offices; 2. Attempts to influence the Committee and Offices; Mr. Timothy P. Lyden May 12, 1988 Page 4 3. Participating in any matters before the Committee and Offices over which you had supervision, direct involvement, or responsibility while employed by the Republican Caucus of the House of Representatives; 4. Lobbying, that is representing the interests of any person or employer before the Committee and Offices in relation to legislation, regulations, etc. See Russell, Opinion 80 -048 and Seltzer, Opinion 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 Committee and Offices, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave House of Representatives, you should not engage in the type of activity outlined above. The Commission, however, has stated that the inclusion of your name as an employee or consultant on a "pricing proposal," even if submitted to or reviewed by the Committee and Offices, is not prohibited as "representation." See Kotalik, Opinion 84 -007. You may, assist in the preparation of any documents presented to the Committee and the Offices so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Committee and the Offices. Once again, however, your activity in this respect should not be revealed to the Committee and the Offices. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Committee and the Offices to secure information which is available to the general public. See Cutt, Opinion 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the Committee and the Offices 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, Opinion 80 -056 and Beaser, Advice 81 -538. 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. Timothy P. Lyden May 12, 1988 Page 5 Finally, it is noted that Section 3(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 Research Analyst, you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with Republican Caucus of the House of Representatives, 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 Committee and the Offices. Lastly, the propriety of the proposed 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. such. This letter is a public record and will be made available as 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 former 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 . Dopko, General Counsel