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HomeMy WebLinkAbout88-629 WydraJoseph J. Wydra, Jr. Director, Research & Legislative Analysis Pennsylvania Gas Association 212 Locust Street Suite 400 P.O. Box 805 Harrisburg, PA 17108 -0805 STATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL September 23, 1988 88 -629 Re: Former Public Employee; Section 3(e), PUC, Intergovernmental Affairs Specialist /Legislative Analyst Dear Mr. Wydra: This responds to your letter of August 23, 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 Pennsylvania Utility Commission. Facts: You state that you have been employed by the Pennsylvania Utility Commission, hereinafter PUC, since December 1982 and that you worked in the PUC's office of Intergovernmental Affairs, hereinafter the Office,as an Intergovernmental Affairs Specialist and then subsequently, as a Legislative Analyst. You state that you reported to Paul Crowley who is the Director of Intergovernmental Affairs and that your job responsibilities consisted of the following: "monitor legislation in the General Assembly; inform the Director of action on related bills; assist in preparation of responses to such bills; assist in coordination of promulgation of regulations under the Regulatory Review Act; coordinate responses to requests from the National Association of Regulatory Utility Commissioners concerning related federal issues; coordinate meetings of the Commission's Consumer Advisory Council (an advisory panel made up of private citizens); and respond to general inquiries concerning Joseph J. Wydra, Jr. September 23, 1988 Page 2 legislative /regulatory matters." The foregoing reflects your duties and responsibilities as outlined in your job description which is incorporated herein by reference. You then advise that on August 17, 1988 you began working for the Pennsylvania Gas Association (PGA) in the capacity of the Director of Research and Legislative Analysis wherein your job responsibilities included monitoring and analyzing all legislation of interest to the PGA, updating PGA members on developing issues and lobbying members of the General Assembly on PGA issues. You conclude by requesting advice from the State Ethics Commission as to what restrictions would be imposed upon your conduct as a result of the change in your employment. Discussion: As a Intergovernmental Affairs Specialist /Legislative Assistant for PUC, 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. 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 the "governmental body" with which you were associated while working PUC 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 dee_;.ed to have been associated during his tenure of public office or Joseph J. Wydra, Jr. September 23, 1988 Page 3 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 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 PUC. 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 PUC. 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 51.1. Joseph J. Wydra, Jr. September 23, 1988 Page 4 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 PUC; 4. Lobbying, that is representing the interests of any person or employer before the Office 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 Office, constitutes an attempt to influence your former governmental body. See Kilareski, Opinion 80 -054. Therefore, within the first year after you leave PUC, 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 Office, is not prohibited as "representation." See Kotalik, Opinion 84 -007. 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, 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 Office your representation of, or work for your new employer. Joseph J. Wydra, Jr. September 23, 1988 Page 5 Finally, administering renegotiating by the Ethics 81 -538. the Commission has concluded that if you are an existing contract as opposed to negotiating or a contract, your activities would not be prohibited Act. See Dalton, Opinion 80 -056 and Beaser, Advice 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). 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. Conclusion: As a Intergovernmental Affairs Specialist /Legislative Assistant you are to be considered a "public employee" as defined in the Ethics Act. Upon termination of your service with PUC, 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 Office. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. such. 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 Joseph J. Wydra, Jr. September 23, 1988 Page 6 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 . Dopko, General Counsel