HomeMy WebLinkAbout93-509 ThomasDear Mr. Thomas:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 1 1470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 25, 1993
Mr. Jeffrey A. Thomas 93 -509
Box 15303
Harrisburg, PA 17105
Re: Former Public Employee; Section 3(g); Personnel Analyst 3,
Division of Labor Relations, Department of Public Welfare.
This responds to your letter of December 14, 1992, 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 Personnel Analyst 3
following termination of service with the Department of Public
Welfare, Division of Labor Relations.
Facts: As a Personnel Analyst 3 with the Department of Public
Welfare (DPW), Division of Labor Relations, you are requesting an
advisory from the State Ethics Commission regarding the impact, if
any, that the Ethics Law would have upon your planned employment
with the law firm of Bray, Berry, Martin and Reardon.
You state that neither in your current position nor in any
past positions with the Commonwealth were you required to complete
the disclosure forms required by the Ethics Law.
Effective February 1, 1993, you plan to become an Industrial
Relations Specialist for the law firm of Bray, Berry, Martin and
Reardon located in Philadelphia, Pennsylvania. You state that
presently Bray, Berry, Martin and Reardon serve as Governor Casey's
outside labor counsel. As such, the firm has various
responsibilities and functions in the overall administration of the
Commonwealth's labor relations program. One of the functions of
the firm is to be the Commonwealth's chairperson for the
Accelerated Grievance Procedure (AGP), a new grievance procedure
currently contained in the American Federation of State County and
Municipal Employees (AFSCME) collective bargaining agreements. In
your prospective position with Bray, Berry, Martin and Reardon, you
will serve as the Commonwealth's chairperson. You state that this
responsibility prompts your request for an advisory.
Mr. Jeffrey A. Thomas
January 25, 1993
Page 2
The AGP was developed to expeditiously resolve grievances
filed by AFSCME against the Commonwealth. The AGP empowers a
panel, which is made up of equal numbers of AFSCME members and
Commonwealth appointed members, to hear and decide grievances.
Each party has a chairperson who serves as the chief administrative
official for that party. However, in terms of decision- making
authority, each chairperson has only one vote, the same as each of
the remaining panel members. Further, the chairpersons rotate
monthly as the panel's chief administrative official. In this
function, they oversee the orderly function of the panel.
You state your belief that you are not currently covered by
the disclosure provisions of the Ethics Law, and you note that your
new position will not require you to do more than serve as a panel
member, who has the additional responsibility of overseeing the
orderly function of the panel, in part or in total. You therefore
further state that you do not believe there is any conflict.
However, you still believe it to be in the best interest of all
concerned to seek an advisory from this Commission.
Discussion: As a Personnel Analyst 3 for the Department of Public
Welfare (DPW), Division of Labor Relations, 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. §402; 51 Pa. Code §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 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 minimis on the interests of another person.
Public employees are required to file Statements of Financial
Interests each year the position is held and the year following
termination. 65 P.S. §404(a).
Furthermore, 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 Law 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 A. Thomas
January 25, 1993
Page 3
Initially, to answer your request the governmental body with
which you are associated while working with DPW 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 have been
associated upon termination of public service would be DPW in its
entirety, including but not limited to the Division of Labor
Relations. 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 DPW, Section 3(g) of the Ethics Law would apply and restrict
representation of persons or new employers vis -a -vis DPW.
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:
Mr. Jeffrey A. Thomas
January 25, 1993
Page 4
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. 51901, it is clear that the governmental body with which you
have been associated is DPW in its entirety.
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 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
Mr. Jeffrey A. Thomas
January 25, 1993
Page 5
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
by 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 Shalt, 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.
You may assist in the preparation of any documents presented
to DPW. However, you may not be identified on documents submitted
to DPW. You may also counsel any person regarding that person's
appearance before DPW. Once again, however, the activity in this
respect should not be revealed to DPW. Of course, any ban under
the Ethics Law would not prohibit or preclude the making of general
informational inquiries of DPW 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 anything of
Mr. Jeffrey A. Thomas
January 25, 1993
Page 6
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 been or will be any transgression
thereof but merely to provide a complete response to the question
presented.
Having set forth the above restrictions which will apply to
you upon termination of your public employment, your prospective
service as the Commonwealth's Chairperson for the AGP, through
private employment with Bray, Berry, Martin and Reardon, will now
be addressed.
The restrictions of Section 3(g) shall apply with respect to
your former governmental body, DPW. Given that the AGP is a
contractually created procedure for resolving grievances between
the Commonwealth and AFSCME, and the panels are composed of various
individuals appointed by the Commonwealth and AFSCME, an AGP panel
would not be part of your "former governmental body." Therefore,
the restrictions of Section 3(g) would not preclude your proposed
service as the Commonwealth's Chairperson for the AGP through your
prospective private employment.
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. Specifically not
addressed herein is the applicability of the Governor's Code of
Conduct.
Conclusion: As a Personnel Analyst 3 with the Department of Public
Welfare (DPW), Division of Labor Relations, you are to be
considered a "public employee" as defined in the Ethics Law. Upon
termination of service with DPW, you would become a former public
employee" subject to Section 3(g) of the Ethics Law. The former
governmental body is DPW in its entirety. The restrictions as to
representation outlined above must be followed. Under the facts
which you have submitted, your prospective service as the
Commonwealth's Chairperson for the Accelerated Grievance Procedure
(AGP) currently contained in the American Federation of State
County and Municipal Employees (AFSCME) collective bargaining
agreements would not be prohibited by Section 3(g) of the Ethics
Law. 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.
Mr. Jeffrey A. Thomas
January 25, 1993
Page 7
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.
incent. Dopxo
Chief Counsel