HomeMy WebLinkAbout90-607 GroganMr. Thomas H. Grogan
710 N. 18th Street
Harrisburg, PA 17103 -1505
Dear Mr. Grogan:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 11, 1990
90 -607
Re: Former Public Employee; Section 3(g); PennDot; Affirmative
Action Analyst.
This responds to your letter of October 26, 1990, in which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of Affirmative Action
Analyst following termination of service with PennDot.
Facts: You seek an advisory regarding your position as a
consultant with a firm doing business with your former employer,
the Pennsylvania Department of Transportation (PennDot). The
function you will be performing relates to assisting minority and
woman business enterprises to complete the Disadvantage Business
Enterprise Certification Affidavit. The completed affidavit and
supporting documentation will be reviewed and submitted to
PennDot by John Milligan, CPA, Business Supportive Services
Center, 801 Arch Street, Philadelphia, Pennsylvania, 19107.
Prior to your retirement on August 3, 1990, you served as
Affirmative Action Analyst, Chief of the Affirmative
Division, Bureau of Equal Opportunity in PennDot for
approximately the past five years. After submitting a copy of
your former job description /classification specification and a
brochure listing the services provided to the Department by the
Business Supportive Services Center, you request advice regarding
the impact of the Ethics Act upon your position as consultant.
Discussion: As an Affirmation Action Analyst for PennDot, you
are to be considered a "public employee" within the definition of
that term as set forth in the Public Official and Employee Ethics
Law and the Regulations of this Commission. 65 P.S. Section 402;
51 Pa. Code Section 1.1. This conclusion is based upon the job
description, which when reviewed on an objective basis, indicates
clearly that the power exists to take or recommend official
Mr. Thomas H. Grogan
Page 2
action of a non - ministerial nature with respect to contracting,
procurement, planning, inspecting, administering or monitoring
grants, leasing, regulating, auditing or other activities where
the economic impact is greater than de minimus on the interests
of another person.
Consequently, upon termination of public service, you would
become a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics Law. Section 3(g) of the
Ethics Act provides that:
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with
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.
Initially, to answer your request the governmental body with
which you were associated while working with PennDot must be
identified. 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
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 PennDot.
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
Mr. Thomas H. Grogan
Page 3
contended but was in fact restricted to all of DPW regarding the
one year representation restriction. Similarly in Sharp, Opinion
90- 009 -R, 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 PennDot, Section 3(g) of the Ethics Law would apply
and restrict representation of persons or new employers vis -a -vis
PennDot.
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
dealing not only with a particular
subdivision of an agency or a local
government but the entire unit..."
Legislative 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 were associated is PennDot.
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,
Mr. Thomas H. Grogan
Page 4
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.
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,
Mr. Thomas H. Grogan
Page 5
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.
You may, assist in the preparation of any documents
presented to PennDot so long as you are not identified as the
preparer. You may also counsel any person regarding that
person's appearance before PennDot. Once again, however, the
activity in this respect should not be revealed to PennDot. Of
course, any ban under the Ethics Law would not prohibit or
preclude the making of general informational inquiries of PennDot
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.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee 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. Reference
is made to these provisions of the law not to imply that there
has or will be any transgression thereof but merely to provide a
complete response to the question presented.
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 a Affirmative Action Analyst, you are be
considered a "public employee" as defined in the Ethics Law.
Upon termination of service with PennDot, you would become a
"former public employee" subject to Section 3(g) of the Ethics
Law. The former governmental body is PennDot. The restrictions
as to representation outlined above must be followed. 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
such.
Mr. Thomas H. Grogan
Page 6
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
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.
S' erely,
Vincent J. Dopko,
Chief Counsel