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HomeMy WebLinkAbout91-570 HenrySTATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 • TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL August 23, 1991 Mr. Lowman S. Henry 91 -570 319 Lopax Road Harrisburg, PA 17112 Re: Former Public Employee; Section 3(g); Legislative Director; Administrative Officer IV; Senate. Dear Mr. Henry: This responds to your letter of June 26, 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 a Legislative Director classified as an Administrative Officer IV to a state Senator following termination of service with the Senate. Facts: As the present Legislative Director to State Senator Earl M. Baker, you seek the advice of the State Ethics Commission. Your employment with Senator Baker commenced on June 3, 1991. Effective June 28, 1991 you are terminating your employment with Senator Baker to become President of the Pennsylvania Leadership Council, Inc. ( "PLC "), which is a citizen's lobby based in Harrisburg. In your capacity as President of the PLC, you will be required to lobby members of the Pennsylvania House of Representatives and the Pennsylvania Senate on specific legislation of concern to PLC members. You note that it is your understanding that there would be no restrictions on your lobbying members of the House of Representatives. You then submit the following specific inquiries: 1. Given the fact that you spent just four weeks as an employee of the Senate, whether there are any restrictions on when you may begin your lobbying activities in that chamber; and 2. If there are time .restrictions on when you may begin lobbying members of the Senate, you seek a legal description as to what sort of an activity constitutes "lobbying." Mr. Lowman S. Henry August 23, 1991 Page 2 A three - paragraph letter in the nature of a job description was obtained from Senator Baker's office. It states that you were employed from June 4, 1991 until June 28, 1991 and were classified as an Administrative Officer IV. You were hired to fill the position of Legislative Director, which was to become vacant July 12, 1991 but given your short tenure you worked in constituent services and conducted research upon the Senator's request. A later memo from Senator Baker's office dated August 20, 1991, explains that there is no classification of "Legislative Director," but this is the title Senator Baker assigns to the person who does his legislative work. Attached to the memo is your job specification for your classification as an Administrative Officer IV. All of the above documents including the job description, job specification and related memoranda are incorporated herein by reference. The job specification enumerates the following duties and responsibilities: ADMINISTRATIVE OFFICER IV Definition: This is highly responsible administrative work in directing a major Senate department, or performing important management functions of comparable responsibility. An employe in this class is responsible for administering a large -scale and complex Senate department, or performing important management functions of comparable responsibility, including directing such major staff services as personnel and fiscal management, budget preparation, and purchasing. Work may involve serving as principal administrative officer of a caucus. An employe in this class may be responsible for exercising broad supervision over a large number of technical and clerical personnel. Work is performed within the broad framework of existing laws and policies, but considerable latitude exists for individual discretion. Work is subject to general review by an administrative superior through conferences and evaluation of reports. Typical Work Assicmments: Directs a major Senate department involving large -scale and highly complex administrative operations; plans, organizes, and Mr. Lowman S. Henry August 23, 1991 Page 3 directs the work of a large number of technical and clerical personnel; establishes operational methods and procedures; develops policies and regulations; recommends the establishment and revision of laws; prepares various statistical, financial, and special reports; holds periodic conferences with subordinate personnel. Serves as principal administrative officer of a caucus; assigns and supervises the work of technical and clerical personnel; schedules and prepares agendas for hearings or meetings; reviews and replies to correspondence; reviews and edits reports and decisions issued by the caucus or Senate Leadership. Directs some or all of the major staff services of a department; prepares, develops supporting data, and presents budget estimates and requests; directs a departmental personnel program; supervises purchasing and storekeeping activities; performs important public relations and liaison duties. Directs the procedural analysis, standards development, research, and planning programs of a large state agency; plans, organizes, and directs the work of a large technical staff. Performs related work as required. Discussion: The threshold question is whether, as a "Legislative Director" classified as an Administrative Officer IV to State Senator Earl M. Baker, 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 the Commission. 65 P.S. 402; 51 Pa. Code 1.1. The Ethics Law defines the term "public .employee" as follows: Section 2. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a non - ministerial nature with regard to: (1) contracting or procurement; Mr. Lowman S. Henry August 23, 1991 Page 4 administering or monitoring grants or subsidies; planning or zoning; inspecting, licensing, regulating or auditing any person; or any other activity where the official action has an economic impact of greater than a de minimus nature on the interests of any person. 65 P.S. 5402. "Public employee" shall not include individuals who are employed by the State or any political subdivision thereof in teaching as distinguished from administrative duties. 65 P.S. 5402. The regulations of the State Ethics Commission similarly define the term public employee as above and also set forth that the term includes any individual: (B) who meets the criteria of either subclause (I) or (II): (I) The individual is: ( -a -) a person who normally performs his responsibility in the field without on -site supervision; ( -b -) the immediate supervisor of a person who normally performs his responsibility in the field without on -site supervision; or ( -c -) the supervisor of any highest level field office. (II) The individual is a person: ( -a -) who: ( -1 -) has the authority to make final decisions; Hr. Lowman S. Henry August 23, 1991 Page 5 ( -2 -) has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions; ( -3 -) prepares or supervises the preparation of final recommendations; or ( -4 -) makes final technical recommendations; and ( -b -) whose recommendations or actions: ( -1 -) are an inherent and recurring part of his position; and ( -2 -) affect organizations other than his own organization.. (ii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iii) Persons in the positions listed below are generally considered public employees. (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs, or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency, or other governmental bodies before the public. Mr. Lowman S. Henry August 23, 1991 Page 6 (D) Solicitors, engineers, managers, and secretary - treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, housing and building inspectors, sewer enforcement officers, and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs, and deputies for the minor judiciary. (F) School business managers and principals. (iv) Persons in the positions listed below are generally not considered public employees. (A) City clerks, other clerical staff, road masters, secretaries, police officers, welfare base workers, maintenance workers, construction workers, detectives, equipment operators, and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards, and writ servers. (C) School teachers and clerk of the schools. 51 Pa. Code §1.1. We must review your status under these provisions of the statute and the regulations of the Commission in light of your duties and obligations as described in your job description and classification specifications, under which you operate. Our inquiry necessarily focuses on the job itself,, that is, we must apply an objective test in determining status as a "public employee" and not focus on the individual incumbent in the position, the variable functions of the position, or the manner Mr. Lowman S. Henry August 23, 1991 Page 7 in which a particular individual occupying a position may carry out those functions. See Phillips v. State Ethics Commission, 79 Pa. Cmwlth. 491, 470 A.2d 659 (1984); and Mummau v. Ranck, 531 Fed. Supp. 402 (E.D. Pa. 1982). Also, in reviewing your status, the Commonwealth Court in its ruling in Phillips, supra, at page 661, directs us to construe coverage of the Ethics Act broadly, rather than narrowly, and conversely, directs that exclusions from the Ethics Law should be narrowly construed. Based upon this directive and reviewing the definition of "public employee" in the statute and the regulations and opinions of this Commission, in light of your job functions and the information available to us, we must conclude that you are a "public employee" subject to the financial reporting and disclosure requirements of the State Ethics Act. It is clear that in your capacity as a Legislative Director classified as Administrative Officer IV, you have the ability to recommend official action with respect to subparagraphs (1), (3), and (5) within the definition of "public employee" as set forth in the Ethics Law, 65 P.S. §402. Specifically, as an Administrative Officer IV, your highly responsible administrative work may include, but is not limited to: directing budget preparation and purchasing; planning, organizing and directing the work of a large technical staff; directing personnel and fiscal management; exercising broad supervision over a large number of technical and clerical personnel; developing policies and regulations and recommending the establishment and revision of laws; and serving as principal administrative officer of a caucus. Your work is subject to general review by an administrative superior, but considerable latitude exists for individual discretion in performing your work as an Administrative Officer IV. These activities fall within the definition of public employee as contained in the regulations of the Commission in Section 1.1, subparagraphs (A), (B)(I), and (B)(II). 51 Pa. Code 1.1. Under these circumstances and given your duties and responsibilities as outlined above, you are a "public employee" as that term is defined in the Ethics Law. 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 Mr. Lowman S. Henry August 23, 1991 Page 8 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 on Senator Baker's staff 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 Pennsylvania Senate. 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 the Pennsylvania Senate, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Pennsylvania Senate. Mr. Lowman S. Henry August 23, 1991 Page 9 It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental bodymilth 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 the Pennsylvania Senate, including but not limited to Senator Baker. 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. 'Mr. Lowman S. Henry August 23, 1991 Page 10 "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, 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. Mr. Lowman S. Henry August 23, 1991 Page 11 You may, assist in the preparation of any documents presented to the Pennsylvania Senate so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Pennsylvania Senate. Once again, however, the activity in this respect should not be revealed to the Pennsylvania Senate. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Senate 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, you first ask whether, in light of the fact that you spent just four weeks as an employee of the Senate, there are any restrictions on when you may begin lobbying activities in that chamber. The answer to your inquiry is that the restrictions of Section 3(g) of the Ethics Law apply to you regardless of the length of time spent as a Senate employee. Section 3(g) of the Ethics Law does not contain any exclusion based upon the duration of public employment. Furthermore, in Sharp, Opinion 90- 009 -R, the Commission specifically rejected an argument that the restriction's application should balance an individual's "scope of influence weighed against the need for restrictions." Id. at 6 -7. Any argument that the duration of public employment should be considered is not only without any basis in the Ethics Law, but is merely a reformulation of that same argument which was rejected in Sharp. to your second specific inquiry, Turning Y p quirt', you request a "legal description" as to what sort of activity constitutes lobbying. The term "lobbying" is not defined in the Ethics Law, but has been interpreted by the Commission in Popovich as set forth above. However, the restrictions of Section 3(g) of the Ethics Law prohibit anv conduct which would constitute "representing" a person, with promised or actual compensation, on any matter before the former governmental body for the one year period following termination of public employment. The Mr. Lowman S. Henry August 23, 1991 Page 12 definition of "represent" clearly includes but is not limited to lobbying. Your conduct must conform to the restrictions against "representation "; the restriction is not merely a restriction against lobbying. 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 Legislative Director classified as an Administrative Officer IV to State Senator Earl M. Baker, you are to be considered a "public employee" as defined in the. Ethics Law. Upon termination of service with the Pennsylvania Senate, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Pennsylvania Senate, including but not limited to Senator Baker. The restrictions as to representation outlined above must be followed and are applicable without regard to the duration of public employment. 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 Mr. Lowman S. Henry August 23, 1991 Page 13 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 S2.12. ncerely, Vincent J. Dopko, Chief Counsel