HomeMy WebLinkAbout92-504W. J. O'Keefe
2035 Red Coach Road
Allison Park, PA 15101
Dear Mr. O'Keefe:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 13, 1992
92 -504
Re: Conflict of Interest; Investigator; State Ethics Commission;
Private Investigator; Former Public Employee; Section 3(g).
This responds to your letter of November 13, 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 prospective employment as a
private investigator following termination of service with the
State Ethics Commission as a Special Investigator III.
Facts: As a Special Investigator III with the State Ethics
Commission, you seek the advice of this Commission regarding your
prospective employment as a private investigator following your
planned retirement from the Commission effective January 10,
1992. Upon retirement, you plan to join a newly formed
corporation which will do confidential investigations for major
corporations and other entities, some of which could be
boroughs, townships, municipalities, and the like. You note
that your position with the corporation will be on a part -time,
contractual basis. Although you will not be a principal in the
corporation, your name and your connection with this Commission
would be part of a brochure developed for mailing to prospective
clients.
You specifically inquire as to what restrictions would be
placed upon you under the following two scenarios:
(1) If you became a member of the corporation
and investigated assigned cases for the
Mr. W. J. O'Keefe
January 13, 1992
Page 2
corporation with your name being used in the
brochure; or
(2) If as a part -time contractor, your name
were to be used in the brochure, and you were
to investigate cases assigned by contract.
You have submitted approximately seven pages of
informational material outlining the organization and anticipated
business to be conducted by the corporation, all of which
material is incorporated herein by reference.
Additionally, copies of your job description, job
classification specification, and organizational chart have been
obtained from the Administrative Officer of this Commission, all
of which documents are also incorporated herein by reference.
Discussion: As a Special Investigator III for the State Ethics
Commission, 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.
Generally, the Ethics Law does not place any per se
prohibition upon a Special Investigator III for the Commonwealth
engaging in private employment as a private investigator upon
termination of public employment. However, Sections 3(a) and
3(g) and various confidentiality provisions of the Ethics Law
are implicated and will be discussed below. 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.
Section 3(a) of-the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as
follows:
,Section 2 . Definitions.
Mr. W. J. O'Keefe
January 13, 1992
Page 3
"Conflict or conflict of interest." Use
by a public official or public employee of
the authority of his office or employment or
any confidential information received through
his holding public office or employment for
the private pecuniary benefit of himself, a
member of his immediate family or a business
with which he or a member of his immediate
family is associated. "Conflict" or
"conflict of interest" does not include an
action having a de minimis economic impact or
which affects to the same degree a class
consisting of the general public or a
subclass consisting of an industry,
occupation or other group which includes the
public official or public employee, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated.
"Authority of office or employment."
The actual power provided by law, the
exercise of which is necessary to the
performance of duties- and responsibilities
unique to a particular public office or
position of public. employment.
"Business with which he is associated."
Any business in which the person or a member
of the person's immediate family is a
director, officer, owner, employee or has a
financial interest.
Section 3(a) would prohibit the use of the authority of
public employment or any confidential information received by
holding public employment for the private pecuniary benefit of
the public employee himself, any member of his immediate family,
or any business with which he or a member of his immediate family
is associated.
Generally, Section 3(a) would prohibit the use of the
facilities, status or activities of public employment to advance
an opportunity of private employment and /or to eliminate any
potential competitors for such a private employment position.
gas, Wall, Advice 90 -567 at 4 (citing Pepper, Opinion 87 -008).
However, Section 3(a) would not restrict the inclusion of your
Mr. W. J. O'Keefe
January 13, 1992
Page 4
tenure with this Commission in your resume /curriculum vitae, or
on a corporate brochure enumerating your credentials.
Any use of confidential information received by holding a
position of public employment with this Commission would be
prohibited by Section 3(a) and by the various confidentiality
provisions set forth in the Ethics Law. Under Section 3(a),
confidential investigative files and other types of confidential
information available to you by virtue of your position with
this Commission could not be used for a prohibited private
pecuniary benefit, such as the benefit of your private employer.
eft, Conway, Advice 87 -625. But furthermore, you would be
required to observe the various confidentiality requirements of
the Ethics Law which specifically pertain to matters before this
Commission, as an absolute legal duty and without regard to any
private pecuniary benefit.
A number of situations may arise where you could be placed
in a difficult situation with regard to confidentiality. For
example, if as a private investigator you should be assigned to a
case regarding a particular individual or matter which had been
the subject of investigation by this Commission, it is difficult
to imagine how you could perform the private investigation
without using confidential information which you had obtained
through your public employment. Similar problems could arise
should you represent a private client as to whom you were privy
to confidential information by virtue of your public employment.
The better practice in such situations would be for you to forgo
any involvement in such private investigations.
Turning now to
termination of public
employee" subject to
Employee Ethics Law.
that:
the applicability of Section 3(g), upon
service, you would become a "former public
Section 3(g) of the Public Official and
Section 3(g) of the Ethics Act provides
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 the State Ethics
Commission must be identified. Then, the scope of the
Mr. W. J. O'Keefe
January 13, 1992
Page 5
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.
"GBvernmental 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 publid service would be the State
Ethics Commission, ,including but not limited to the Pittsburgh
Regional Office. 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 State Ethics Commission, Section 3(g) of the
Ethics Law would apply and restrict representation of persons or
new employers vis -a -vis the State Ethics Commission.
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
Mr. W. J. O'Keefe
January 13, 1992
Page 6
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..."
Lâ–ºeaislative 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 State Ethics Commission
including but not limited to the Pittsburgh Regional Office.
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 restriction against such
"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,, limited to, the following:
personal appearances, negotiations, lobbying
and submitting bid or contract proposals
Mr. W. J. O'Keefe
January 13, 1992
Page 7
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. In Shay, Opinion 91 -012, the Commission held
that Section 3(g) would prohibit the inclusion of the name of a
former public official /public. employee on invoices submitted by
his new employer to the former governmental body, even though the
invoices pertained to a contract which existed prior to
termination of public service. Therefore, within the first year
after termination of service, you should not engage in the type
of activity outlined above.
Mr. W. J. O'Keefe
January 13, 1992
Page 8
You may, assist in the preparation of any documents
presented to the State Ethics Commission so long as you are not
identified as the preparer. You may also counsel any person
regarding that person's appearance before the State Ethics
Commission. Once again, however, the activity in this respect
should not be revealed to the State Ethics Commission. Of
course, any ban under the Ethics Law .would not prohibit or
preclude the making of general informational inquiries of the
State Ethics Commission 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. Once
again, 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.
It is noted that the above restrictions of the Ethics Law
would apply to you whether your future status with your
prospective employer is as an employee or alternatively is as a
part -time contractor investigating cases assigned through a
contract with the corporation.
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 Special Investigator III for the State Ethics
Commission, you are to be considered a "public employee" as
defined in the Ethics Law. Subject to the various qualifications
and restrictions noted above, the Ethics Law would not prohibit
your prospective employment as a private investigator upon
termination of public service with this Commission. The Ethics
Law would not restrict the inclusion of your tenure with this
Commission in your resume /curriculum vitae or on a brochure
enumerating your credentials. Section 3(a) would prohibit the
use of confidential information available to you by virtue of
your public employment to benefit you or your private employer.
The various confidentiality provisions of the Ethics Law must be
Mr. W. J. O'Keefe
January 13, 1992
Page 9
observed at all times. Upon termination of service with the
State Ethics Commission, you would become a "former public
employee" subject to Section 3(g) of the Ethics Law. The former
governmental body is the State Ethics Commission, including but
not Baited to the Pittsburgh Regional Office. 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
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 52.12.
Sincerely,
cTI/t>
Vincent J. Dopko
Chief Counsel