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HomeMy WebLinkAbout91-564 CarletonMr. C. Sargent Carleton Suite 1109 1520 Spruce Street Philadelphia, PA 19102 Dear Mr. Carleton: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 19, 1991 91 -564 Re: Former Public Employee; Section 3(g); Department of Labor and Industry; Director of Communications and Special Assistant to the Secretary of the Department of Labor and Industry. This responds to your letter of June 27, 1991, 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 the Director of Communications and Special Assistant to the Secretary of the Pennsylvania Department of Labor and Industry following termination of service with the Department. Facts: As the current Director of Communications and Special Assistant to the Secretary of the Pennsylvania Department of Labor and Industry (L &I), you seek the advice of this Commission. As of June 30, 1991, you are leaving the employ of the Commonwealth because your executive position has been eliminated as part of the Governor's cost - reduction efforts. One of the projects which you began for L &I but have been unable to complete is the production of a brief videotape intended to promote "ALEX" - (Automated Labor Exchange) - to the business community in an effort to get them to list job openings in the Department's computer network. The Department has contracted with Commonwealth Media Services to do shooting and provide facilities and technicians for editing and mixing sound. In addition to your normal responsibilities as Director of Communications, you volunteered to write the script for the videotape and to act as producer and field director for it, in an effort to save L &I money. The first draft of the script is written, one day of shooting has taken place, and you have completed initial interviews at a second site. However, you state that more work is needed to be done. When you leave L &I there will be no one Mr. C. Sargent Carleton August 19, 1991 Page 2 with the Department who has the skills required to complete the video. This means that the Department would have to turn the entire project over to the Commonwealth Media Services (CMS) for completion, which would entail addition fees to CMS to cover the time that their personnel would devote to the tasks of producing and field directing which you have begun. You seek advice on the following specific inquiries: 1. Whether the Ethics Law would be transgressed if L &I contracted with you, on a free - lance, daily basis to complete the job? and 2. In the alternative, whether the Ethics Law would be transgressed if CMS contracted with you, on a free- lance, daily basis to complete the job? You seek an expedited response, noting that the U.S. Department of Labor is the primary funding source for the project. The Commission has obtained from L &I a copy of your job description; job specification; and an internal memo from Mr. Harris Wofford to Labor and Industry Colleagues dated January 9, 1990 further explaining your duties as Special Assistant to the Secretary for Communications, which documents are incorporated herein by reference. Discussion: As the Director of Communications and Special Assistant to the Secretary of the Pennsylvania Department of Labor and Industry (L &I), 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 incorporated job description, job specification and related documents which when reviewed on an objective basis, indicates 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. Mr. C. Sargent Carleton August 19, 1991 Page 3 (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 L &I 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 L &I. 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 L &I, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis L &I. Mr. C. Sargent Carleton August 19, 1991 Page 4 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 L &I. 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 Mr. C. Sargent Carleton August 19, 1991 Page 5 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, 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 L &I so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before L &I. Once again, however, the activity in this respect should not be revealed to L &I. Of course, any ban under the Ethics Law would not prohibit or Mr. C. Sargent Carleton August 19, 1991 Page 6 preclude the making of general informational inquiries of L &I 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. Turning to your specific inquiries, your inquiries may only be addressed from your perspective, rather than from the perspective of L &I or CMS which governmental bodies themselves are not subject to the restrictions of Section 3(a) of the Ethics Law. The Ethics Law would be transgressed if you, as a former public employee, were to contract with your former governmental body, L &I, during the first year following the termination of your employment with L &I to complete the videotape project. The Commission has specifically held that the Ethics Law prohibits a former public employee from entering into a contract with the former governmental body, to provide through a corporation wholly owned by the former public employee, the same services which he provided as a public employee. Confidential Opinion, 89 -019. In this case, it appears that you would be contracting on your own behalf as an individual with L &I, rather than through a corporation, but the same reasoning would apply. With regard to your second specific inquiry, the Ethics Law would not prohibit you from contracting with CMS, because CMS is not your former governmental body. However, in providing services to CMS, you would not be relieved of the restrictions with regard to L &I, and you would be required to observe those restrictions. It is recognized that the restrictions upon your conduct with regard to L &I may present logistic problems in completing the videotape project for L &I, even if through a contract with CMS. If you have further, specific questions you may submit a request for further advice. 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 Mr. C. Sargent Carleton August 19, 1991 Page 7 other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. Conclusion: As the Director of Communications and Special Assistant to the Secretary of the Pennsylvania Department of Labor and Industry (L &I), you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with L &I, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is L &I. The restrictions as to representation outlined above must be followed, whether or not you contract with Commonwealth Media Services with regard to L &I projects. 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. 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 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 §2.12. Sincerely, Vincent J. Dopko, Chief Counsel