HomeMy WebLinkAbout90-584 ConfidentialSTATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
August 14, 1990
90 - 584
Re: Former Public Employee, Section 3(g), Executive Assistant,
Executive Level Employee, Former Public Employee.
This responds to your letter of July 13, 1990, in which you
requested a confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon an executive level
employee and former public employee of a department in the
executive branch.
Facts: You are currently employed by the A as the Executive
Director of B which is C. You contemplate leaving state service
and have two general inquiries. First, as Executive Director of
B, you are responsible for administering funds of the
Commonwealth's. D but not as to any private entities. Among the
employment fields you contemplate is financial packaging which
would include the representation for purposes of securing E from
the A. These funds are administered through the A, F with
frequent involvement by G. In your capacity as Executive
Director of B, you have not been put in association with either
of the above offices on other than a casual basis despite your
technical affiliation through the A. You have not suggested that
the F commit or withhold grant or loan funds from any entity.
You then ask as to whether you are free to represent parties
other than the H before the F or the I within one year of
termination of your service with the Commonwealth. Secondly, you
note that at one time you performed an analysis of a request by
the J for capital project maintenance and rehabilitation funding.
You have advised that it is possible to a limited degree that
your analysis may have influenced the administration to support
the inclusion of a line item supporting such grant within the
1990 capital budget bill. You had no direct involvement in the
matter with the parties and did not actively recruit nor were
privy to any negotiations that may have taken place. You do not
have any duties or responsibilities for the administration of any
grants which may have resulted. Although the funds were
incorporated in the capital budget bill, you are not aware as to
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whether they have been approved for release by the Governor's
Budget Office. If the funds are released they would be
administered by K. You add that the funds in question were for
rehabilitation of existing tracks and not a new plant facility or
branch or for the expansion of an existing plant. Since you do
not pose any specific question as to your second factual area of
concern, it will be assumed that your inquiry is the same as to
the first situation.
Discussion: As Executive Director for the B in the A you are a
public employee as that term is defined under the Ethics Law, and
hence you are subject to the provisions of that law. In
addition, you are an executive -level state employee as that term
is defined under the Ethics Law, infra and as such are subject to
the requirements of Section 3(i), infra.
Sections 3(b) and 3(c) of the Ethics Law provide in part
that no person shall offer to a public official /employee anything
of monetary value and no public official /employee shall solicit
or accept any thing of monetary value based upon the
understanding that the vote, official action, or judgement of the
public official /employee would be influenced thereby.
Sections 3(i) and 3(g) of the Ethics Law provide:
Section 3. Restricted Activities
(i) 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 from the
Commonwealth to the business or corporation
recruited or induced to expand.
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with
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promised or actual compensation, on any
matter before the governmental body with
which he has been associated for one year
after he leaves that body.
As noted above, Section 3(i) sets forth a specific
prohibition that a former executive level state employee for a
period of two years after termination of state employment may not
be employed or receive any compensation or may act in a
representative capacity for a business or corporation that the
former executive level state employee participated in recruiting.
It should be further noted that the above restriction
specifically applies to the situation where the recruitment is
accomplished by a grant or loan or money or a promise of a grant
or loan or money from the Commonwealth to the business or
corporation recruited or induced to expand. The intendment of
the above provision of the Ethics Act is to prohibit an executive
level state employee from obtaining employment or acting as a
representative for various businesses or corporations that were
recruited or induced to expand. Thus, Section 3(i) of the Ethics
Act would restrict your employment for a two year period as to
any business or . corporation if the recruitment or inducement was
accomplished by a grant, loan, money or promise of a grant, loan
of money from the Commonwealth to the business or corporation
which was recruited or induced to expand. Section 3(i) of the
Ethics Act would not preclude your employment or representation
of clients unless the above qualifying condition of Section 3(i)
is applicable.
As to Section 3(i) of the Ethics Law, that provision of law
is applicable to you as an executive -level state employee.
Section 3(i) would not restrict you from the position of
employment with D or the J provided you did not actively
participate in recruiting D or the J or inducing the D or the J
to open a new facility or branch in the Commonwealth or
participate in inducing the D or the J to expand an existing
plant or facility that was accomplished by a grant or loan of
money from the Commonwealth to the D or the J that was recruited
or induced to expand.
In addition, if you terminate public service you would
become a former public employee subject to Section 3(g) of the
Public Official and Employee Ethics Law quoted above. In
analyzing the provisions of Section 3(g) of the Ethics Law, it is
necessary to determine the governmental body with which you were
associated while working with the A. Then, the scope of the
prohibitions associated with the concept and term of
"representation" must be reviewed.
The term "governmental body with which a public official or
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public employee is or has been associated" is defined under the
Ethics Law as follows:
Section 2. Definitions.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is
or has been employed or to which the public
official or employee is or has been appointed
or elected and subdivisions and offices
within that governmental body.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which you were
associated upon termination of .public service would be the entire
A and the G, hereinafter collectively referred to as your
governmental bodies. The above is based upon the language of the
Ethics Law, the legislative intent (Legislative Journal of House,
1989 Session, No. 15 at 290, 291) and the prior precedent of this
Commission. Thus, in Sirolli, Opinion 90 -006, the Commission
found that a former Division Director of the Department of Public
Welfare (DPW) was not merely restricted to the particular
Division as was contended but was in fact restricted to all of
DPW regarding the one year representation restriction. Similarly
in Sharp, Opinion 90 -009, it was determined that a former
legislative assistant to a state senator was not merely
restricted to that particular senator but to the entire Senate as
his former governmental body.
Therefore, within the first year after termination of
service with the A, Section 3(g) of the Ethics Law would apply
and restrict representation of persons or new employers vis -a -vis
your governmental bodies.
It is noted that Act 9 of 1989 significantly broadened the
definition of the term "governmental body with which a public
official or public employee is or has been associated." It was
the specific intent of the General Assembly to define the above
term so that it was not merely limited to the area where a public
official /employee had influence or control but extended to the
entire governmental body with which the public official /employee
was associated. The foregoing intent is reflected in the
legislative debate relative to the amendatory language for the
above term:
We sought to make particularly clear
that when we are prohibiting for 1 year that
revolving -door kind of conduct, we are
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dealing not only with a particular
subdivision of an agency or a local
government but the entire unit..."
Leoisla0.ve Journal of House, 1989 Session,
No. 15 at 290, 291.
Therefore, since the Ethics Law must be construed to
ascertain and effectuate the intent of the General Assembly under
1 Pa. C.S.A. 1901, it is clear that the governmental body with
which you have been associated is your governmental bodies.
Turning now to the scope of the restrictions under Section
3(g), the Ethics Law does not affect one's ability to appear
before agencies or entities other than with respect to the former
governmental body. Likewise, there is no general limitation on
the type of employment in which a person may engage, following
departure from their governmental body. 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 governmental body.
In respect to the one year representation, the Ethics Law
defines "Represent" as follows:
Section 2. Definitions.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the following:
personal appearances, negotiations, lobbying
and submitting bid or contract proposals
which are signed by or contain the name of a
former public official or public employee.
In addition, the term "Person" is defined as follows under
the Ethics Law:
Section 2. Definitions.
"Person." A business, governmental
body, individual, corporation, union,
association, firm, partnership, committee,
club or other organization or group of
persons.
Page 6
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
1. Personal appearances before the former governmental
body or bodies, including, but not limited to, negotiations or
renegotiations in general or as to contracts;
2. Attempts to influence;
3. Submission of bid or contract proposals which are
signed or contain the name of the former public
official /employee;
4. Participating in any matters before the former
governmental body as to acting on behalf of a person;
5. Lobbying, that is representing the interests of any
person or employer before the former governmental body in
relation to legislation, regulations, etc.
The Commission has also held that listing one's name as the
person who will provide technical assistance on such proposal,
document, or bid, if submitted to or reviewed by the former
governmental body constitutes an attempt to influence the former
governmental body. Therefore, within the first year after
termination of service, you should not engage in the type of
activity outlined above. The Commission, however, has stated
that the inclusion of one's name as an employee or consultant on
a "pricing proposal," even if submitted to or reviewed by your
governmental bodies, is not prohibited as representation.
You may, assist in the preparation of any documents
presented to your governmental bodies so long as you are not
identified as the preparer. You may also counsel any person
regarding that person's appearance before your governmental
bodies. Once again, however, the activity in this respect should
not be revealed to your governmental bodies. Of course, any ban
under the Ethics Law would not prohibit or preclude the making of
general informational inquiries of your governmental bodies to
secure information which is available to the general public.
This must not be done in an effort to indirectly influence the
former governmental body or to otherwise make known to that body
the representation of, or work for the new employer.
Therefore, based upon the above you are specifically advised
that the restrictions of Section 3(g) would apply to your
representation of all persons which would include, but not be
limited to the D or the J before your former governmental bodies.
Page 7
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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 Law.
Conclusion: As an Executive Director for A, you are to be
considered a "public employee" as defined in the Ethics Law.
Upon termination of service with A, you would become a "former
public employee" subject to the Ethics Law. The former
governmental body is your governmental bodies as delineated
above. The restrictions as to representation as outlined above
must be followed. As an Executive -Level State employee, Section
3(i), if applicable, would restrict your activities as set forth
above. The propriety of the proposed conduct has only been
addressed under the Ethics Law.
Further, should service be terminated, as outlined above,
the Ethics Law also requires that a Statement of Financial
Interests be filed for the year following termination of service.
Pursuant to Section 7(11), 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 in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Sincerely,
Vincent J. Dopko,
Chief Counsel