HomeMy WebLinkAbout93-582 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 21, 1993
93 -582
Re: Former Public Employee; Section 3(g); Legislative Assistant
to a Member of the General Assembly; House of
Representatives.
This responds to your letter of June 30, 1993, in which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of a Legislative
Assistant to a Member of the Pennsylvania Legislature following
termination of service.
Facts: For the past fourteen (14) years, you have been an
employee of the Pennsylvania House of Representatives.
Currently, you are a Legislative Assistant to A.
You are seeking employment with non - governmental companies,
associations and individuals and are planning to leave the House
in B. Many of these potential employers have previously
contacted you in your position as Legislative Assistant regarding
pending legislation, regulatory matters and issues before the
Executive Branch agencies. Based upon the above, you have
requested an advisory from the State Ethics Commission as to any
restrictions which might apply to your future employment with
these entities with whom you currently work on legislative
matters.
Discussion: As a Legislative Assistant with the House of
Representatives, 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. 5402; 51 Pa. Code 511.1. This conclusion is
based upon the job description, which when reviewed on an
objective basis, indicates clearly that the power exists to take
July 21, 1993
Page 2
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.
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.
Initially, to answer your request the governmental body with
which you are associated while working with A 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 are
associated upon termination of public service would be the House
of Representatives, in its entirety. 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
July 21, 1993
Page 3
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 House of Representatives, Section 3(g) of the
Ethics Law would apply and restrict representation of persons or
new employers vis -a -vis the House of Representatives.
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. S1901, it is clear that the governmental body with
which you are associated is the House of Representatives.
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.
July 21, 1993
Page 4
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.
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 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.
You may assist in the preparation of any documents presented
to the House of Representatives. However, you may not be
identified on documents submitted to the House of
Representatives. You may also counsel any person regarding that
July 21, 1993
Page 5
person's appearance before the House of Representatives. Once
again, however, the activity in this respect should not be
revealed to the House of Representatives. Of course, any ban
under the Ethics Law would not prohibit or preclude the making of
general informational inquiries of the House of Representatives
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, 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.
In Confidential Opinion 93 -005, the Commission held that
Section 3(g) precludes a former public official /employee from
providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
Further, 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
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.
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 Assistant, you are to be considered
a "public employee" as defined in the Ethics Law. Upon
termination of service with the House of Representatives, you
would become a "former public employee" subject to Section 3(g)
of the Ethics Law. The former governmental body is the House of
Representatives, in its entirety. The restrictions as to
representation outlined above must be followed. The propriety of
July 21, 1993
Page 6
the proposed conduct has only been addressed under the Ethics
Law.
Finally, 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
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 513.2(h).
'ncerely,
Vincent . Dopko
Chief Counsel