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HomeMy WebLinkAbout91-549 HeverlingSTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 12, 1991 Mr. Jeffrey M. Heverling 91 -549 Four Fox Chase Drive Harrisburg, PA 17111 Re: Former Public Employee; Section 3(g); Office of Attorney General, Office of Consumer Advocate; Senior Regulatory Analyst. Dear Mr. Heverling: This responds to your letter of April 29, 1991, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon your employment following termination of service as a Senior Regulatory Analyst at the Office of Attorney General, Office of Consumer Advocate (OCA). Facts: As a former Senior Regulatory Analyst at the Office of the Attorney General, Office of Consumer Advocate (OCA), you seek the advice of this Commission. You have provided a memorandum which sets forth the facts and a discussion pertinent to your request which memorandum is incorporated herein by reference. OCA represents consumers in public utility matters before the PUC and federal regulatory agencies and courts. The OCA is an independent office within the Office of Attorney General, an executive branch state agency. The Consumer Advocate is appointed by the Attorney General and confirmed by the Senate. The Consumer Advocate appoints all attorneys and professional staff with the approval of the Attorney General. OCA is charged with the responsibility to represent the interests of utility consumers when and in a manner determined to be in the public interest by the Consumer Advocate. You were employed as a Senior Regulatory Analyst at OCA from September 1, 1987 until your resignation on March 1, 1991. Your responsibilities included analysis and review of tax and accounting issues of utilities; advising OCA on issues and cases Mr. Jeffrey M. Heverling Page 2 presented to it; participating in discovery, preparation and submission of testimony; and assisting OCA trial counsel in the preparation of briefs in public utility rate cases litigated before the Pennsylvania Public Utility Commission (PUC). Following your resignation from OCA on March 1, 1991, you commenced employment on March 11, 1991, with Buchart -Horn, Inc., a consulting firm where you hold a professional staff position as a Senior Project Accountant. However, you note that prior to your employment with OCA you were employed with the. PUC from July, 1984 to September, 1987, where you state that your responsibilities were identical to those of your employment at OCA. The PUC regulates the investor - owned public utilities which provide service within the Commonwealth of Pennsylvania. The PUC is authorized by statute to set just and reasonable rates that are charged to customers for utility service, assure reliable and adequate service to all customers, ensure compliance with its own regulations and the Public Utility Code, and to develop public utility policy which is in the public interest. You have not been employed with the PUC since September 1, 1987. It is noted that upon your termination of employment with the PUC in 1987, you sought the advice of this Commission resulting in the issuance of Advice 88 -540. You state as the primary issue in this case, whether you are prohibited from representing your new, private employer's clients before the PUC for the one -year period following your termination of service with OCA. You admit that you were a "public employee" as defined by the Ethics Law while serving with OCA. You further admit that because of your status as a public employee subject to the Ethics Law, the restrictions of the Ethics Law would apply to you and would prohibit you as a "former public employee" from representing any person before OCA for a one -year period following your termination of service with OCA. (Although you cite Section 3(e) of the Ethics Act, it is noted that effective June 26, 1989, the relevant statutory provision is embodied at Section 3(g) of the reenacted and amended Ethics Law, Act 9 of 1989, 65 P. S. §401,et However, you opine that it is not clear that you should be prohibited from representing your private employer's clients before the PUC since there is a related adversarial role performed by the OCA in PUC matters. Your current employment would not necessarily require your direct representation before OCA, but would involve the development and filing, as well as testimony in support of, utility rate filings before the PUC but not OCA. Your current employment would not provide the opportunity to privately or otherwise influence the outcome of Mr. Jeffrey M. Heverling Page 3 any utility rate increase request reviewed by OCA. Furthermore, OCA takes on an adversarial role when involved in a specific utility rate filing, representing ratepayers against the filing. OCA carries out this responsibility when specific rate filings are litigated before the PUC by intervening in formal hearings conducted before an Administrative Law Judge. When specific rate filings are not litigated, OCA informally participates by reviewing utility rate filings to determine if there is a ratepayer interest of sufficient magnitude to justify intervention and litigation. Only a small percentage of cases that are filed with the PUC involve full litigation. You state your belief that the danger that the Legislature sought to address when drafting the State Ethics Act was the potential that former employees would use their past employment associations to provide a financial benefit to themselves or their new employer to the detriment of the public. You believe that that danger is not present under these circumstances and that you should not be prohibited from representing (as defined in the Ethics Law) your firm's clients. Discussion: As a Senior Regulatory Analyst for OCA, 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 above submitted facts, which when reviewed on an objective basis, indicate clearly that the power exists to take or recommend official 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. Mr. Jeffrey M. Heverling Page 4 Initially, to answer your request the governmental body with which you were associated while working with OCA 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 the Office of Attorney General, including but not limited to OCA. 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 -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 OCA, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Office of Attorney General, including but not limited to OCA. 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 Mr. Jeffrey M. Heverling Page 5 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 the Office of Attorney General including but not limited to OCA. 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. Mr. Jeffrey M. Heverling Page 6 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, 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 the Office of Attorney General so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office of Attorney General. Once again, however, the activity in this respect should not be revealed to the Office of Attorney General. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Office of Attorney General to secure information which is available to the general public. This must Mr. Jeffrey M. Heverling Page 7 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. Turning to your specific inquiry, your former governmental body for present purposes is the Office. of Attorney General -not the PUC. Although the PUC was your former governmental body for purposes of the one-year restriction when you terminated your employment with the PUC in 1987, that one -year prohibition has long since expired. The Office of Attorney General is a distinct and separate body from the PUC, and the prohibitions of Section 3(g) of the Ethics Law which apply to you at this time apply with respect to the Office of Attorney General as your former governmental body. Therefore, the Ethics Law would not prohibit you from testifying at PUC proceedings on behalf of Buchart- Horn's utility clients in an adversarial posture to OCA, subject to the restrictions set forth herein. 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 Senior Regulatory Analyst for the Office of Attorney General, Office of Consumer Advocate (OCA), you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with OCA, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Office of Attorney General including but not limited to OCA. The restrictions as to representation outlined above must be followed. However, the restrictions as to representation reply with respect to the Office of Attorney General as your former governmental body, rather than the PUC. The Ethics Law would not prohibit you from testifying at PUC proceedings on behalf of Buchart- Horn's utility clients in an adversarial posture to OCA. The propriety of the proposed conduct has only been addressed under the Ethics Law. Mr. Jeffrey M. Heverling Page 8 such. 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 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, vwc Ccytti Vincent J. Dopko, Chief Counsel