HomeMy WebLinkAbout93-610 MastersSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
October 13, 1993
Pamela A. Masters
Ernst & Young
One Oxford Centre
Pittsburgh, PA 15219 93 -610
Re: Former Public Employee; Section 3(g); Revenue Field Auditor;
Auditing Specialist; Department of Revenue; Bureau of Audits.
Dear Ms. Masters:
This responds to your letter of September 29, 1993, 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 Revenue Field Auditor
and Taxation Auditing Specialist following termination of service
with the Pennsylvania Department of Revenue, Bureau of Audits.
Facts: You have written regarding the Public Official and Employee
Ethics Law one -year restriction on representation of your new
employer before your formal governmental body. You worked for the
Department of Revenue, Bureau of Audits as a sales and use tax
Revenue Field Auditor and as a Taxation Auditing Specialist until
June 25, 1993. On July 1, 1993, you commenced employment with
Ernst and Young as a Senior Tax Consultant, specializing in the
area of sales and use taxes.
You indicate that your responsibilities include advising
clients and preparing refund and audit appeal petitions. Further,
you indicate that your responsibilities include representing
clients at hearings and at post -audit conferences.
You understand that there is a restriction on representing
clients before certain governmental bodies for a period of one
year, however, you are unsure as to whether such restrictions
prohibit you from accompanying your supervisor to such hearings and
conferences as an observer, rather than as an active representative
or participant.
Based upon the above you request an advisory from the State
Masters, 93 - 610
October 13, 1993
Page 2
Ethics Commission regarding the applicability of the Ethics Law to
your current employment.
Discussion: It is initially noted that your request for advice may
only be addressed with regard to prospective conduct. A reading of
Sections 7(10) and 7(11) of the Ethics Law makes it clear that an
opinion or advice may be given only as to prospective (future)
conduct. if the activity in question has already occurred, the
Commission may not issue an opinion or advice but any person may
then submit a signed and sworn complaint which will be investigated
by the Commission if there are allegations of Ethics Law violations
by a person who is subject to the Ethics Law.
As a Revenue Field Auditor and Taxation Auditing Specialist
for the Department of Revenue, Bureau of Audits, you were 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 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 became
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 were associated while working with the Bureau of Audits
must be identified. Then, the scope of the prohibitions
associated with the term and concept 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:
Masters, 93 -610
October 13, 1993
Page 3
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, it
must be concluded that the governmental body with which you were
associated upon termination of public service would be the
Department of Revenue. 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 Department of Revenue, Bureau of Audits, Section 3(g) of
the Ethics Law would apply and restrict representation of persons
or new employers vis -a -vis the Department of Revenue, in its
entirety.
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.
Masters, 93 -610
October 13, 1993
Page 4
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 Department of Revenue.
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 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.
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;
Masters, 93 -610
October 13, 1993
Page 5
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 Shav, 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 Department of Revenue. However, you may not be identified
on documents submitted to the Department. You may also counsel any
person regarding that person's appearance before the Department of
Revenue. Once again, however, the activity in this respect should
not be revealed to the Department. Of course, any ban under the
Ethics Law would not prohibit or preclude the making of general
informational inquiries of the Department 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 this case, however, accompanying your supervisor to
hearings and post -audit conferences, even as an observer, is
considered to be more than the performance of activities which the
general public would engage in. Your presence clearly would make
known to your former governmental body your work for your new
employer. Accordingly, such activity would be prohibited under
Section 3(g) of the Ethics Law.
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
Masters, 93 -610
October 13, 1993
Page 6
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.
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
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 Revenue Field Auditor and Taxation Auditing
Specialist for the Department of Revenue, Bureau of Audits, you
were a "public employee" as defined in the Ethics Law. Upon
termination of service with the Department of Revenue, you became
a "former public employee" subject to Section 3(g) of the Ethics
Law. The former governmental body is the Department of Revenue, in
its entirety. 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, since service has been 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. Anv such appeal must be in writing and must be received at
Masters, 93 -610
October 13, 1993
Page 7
the COiiission within 15 days of the date of this Advice pursuant
to 51 Pa. Code 513.2(h).
Vincent J. Dopko
Chief Counsel