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HomeMy WebLinkAbout94-511 RubinDear Mr. Rubin: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL February 10, 1994 Scott J. Rubin 3 Lost Creek Drive Selinsgrove, PA 17870 94 -511 Re: Former Public Employee; Section 3(g); Senior Assistant Consumer Advocate; Office of Consumer Advocate; Attorney; Representation. This responds to your letter of January 6, 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 a Senior Assistant Consumer Advocate following termination of service with the Office of Consumer Advocate. Facts: You are an attorney employed as a Senior Assistant Consumer Advocate with the Office of Consumer Advocate, - a statutorily independent agency administratively within the Office of Attorney General. (71 P.S. 5309 -1 et sea.) The Office of Consumer Advocate represents the interests of utility consumers in matters before the Pennsylvania Public Utility Commission, other state and federal administrative agencies and the courts. You are responsible for directing the daily operations of portions of the Office, including supervising fourteen staff attorneys. You also render advice to the Consumer Advocate on matters such as hiring expert witnesses, litigation strategy, personnel and equipment procurement. Final decisions on these matters, however are made by the Consumer Advocate. You state that you have also testified for the Office of Consumer Advocate in several administrative hearings as an expert witness on matters relating to public policy and utility rates. For the past three years, you have served as the Consumer Advocate's designated alternate on the Board of Directors of the Pennsylvania Energy Development Authority, which is administered by the Pennsylvania Energy Office. You state that on January 28, Rubin, Scott J., 94 -511 February 10, 1994 Page 2 1994, you will be leaving the Office of Consumer Advocate to start a private consulting practice. You request an advisory from the State Ethics Commission concerning the lawful scope of employment upon leaving your position within the Commonwealth. You seek answers to the following specific questions: 1. How long must you wait to solicit business, as a consultant and expert witness, from the Office of Consumer Advocate? 2. How long must you wait to solicit business, as an attorney, from the Office of Consumer Advocate? 3. Are there any restrictions on your soliciting business from any other agency of the Commonwealth, including (but not limited to) the Office of Attorney General, the Public Utility Commission, and the Pennsylvania Energy Office? 4. Are there any restrictions on your appearing before the Pennsylvania Public Utility Commission, as either an attorney or an expert witness, on behalf of another party other than the Office of Consumer Advocate? 5. Are there any differences in any of the above restrictions if you work as an independent contractor for another consulting firm which solicits business from the Office of Consumer Advocate (or other agency)? For example, may you work on a contract from the Office of Consumer Advocate so long as you play no role in soliciting the contract? 6. Are there any other private activities which might place you in violation of the State Ethics Act? Discussion: As a Senior Assistant Consumer Advocate for the Office of Consumer Advocate, 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. S402; 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 Rubin, Scott J., 94 -511 February 10, 1994 Page 3 Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Regtricted 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 Office of Consumer Advocate 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 Office of Attorney General, in its entirety, including the Office of Consumer Advocate. 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. Rubin, Scott J., 94 -511 February 10, 1994 Page 4 Thus, within the first year after termination of service, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis your former employer. 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. §1901, it is clear that the governmental body with which you were associated is the Office of Attorney General, in its entirety, including the Office of Consumer Advocate. 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: Rubin, Scott J., 94 -511 February 10, 1994 Page 5 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 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 Office of Attorney General, in its entirety, including the Office of Consumer Advocate. However, you may not be identified on documents submitted to that governmental body. You may also counsel any person regarding that person's appearance before that Office. Once again, however, the activity in this respect should Rubin, Scott J., 94 - 511 February 10, 1994 Page 6 not be revealed to that Office. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Office 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. However, Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Commw. 88 (1981), affirmed, per curiam, 450 A.2d 613, 498 Pa. 589 (1982), dealt with the applicability of Section 3(e) of the Ethics Act of 1978 to attorneys in the regulation of their practice of law. Here, you also seek clarification on the applicability of the current Public Official and Employee Ethics Law to your situation and any restrictions that might be placed upon your conduct with respect to your practice to law. In Pennsylvania Public Utility Commission Bar Association, supra, the Court held that former Section 3(e) of the Ethics Act of 1978, the predecessor of Section 3(g), was an impermissible intrusion upon the Supreme Court's authority to regulate an attorney's conduct; the State .Ethics Commission has applied this decision to mean that there are no prohibitions under Section 3(g) of the current Ethics Law upon your conduct insofar as that conduct constitutes the practice of law. Spataro, Opinion 89 -009. Therefore, insofar as your conduct before the agency or entity with which you were associated, would constitute the practice of law, Section 3(g) of the Ethics Law cannot be applied to restrict that proposed activity. Particular reference should be made to the decision of the Commonwealth Court at Footnote 7, 434 A.2d at page 1331 -1332. In this note, the Court indicated that any activity in Rubin, Scott 3., 94 -511 February 10, 1994 Page 7 which the attorney purports to render professional services to a client may only be regulated by the Supreme Court. We must conclude that to the extent that you would represent a client, as a lawyer, before the governmental body with which you were associated, Section 3(g) of the Ethics Law would not operate to bar such activity. Thomas, Opinion 90 -018. If, however, activities you undertake before the Office of Attorney General -- the governmental body with which you have been associated while employed by the Office of Consumer Advocate -- do not fall within the category of the "practice of law ", the prohibitions of Section 3(g) of the Ethics Law might be applicable. An activity which might be considered by the Commission, not to constitute the "practice of law" or to be undertaken in the capacity as lawyer- client, might be lobbying. However, if you undertake activities in the capacity of lawyer- client, these activities would constitute the practice of law, and the provisions of Section 3(g) of the Ethics Law, pursuant to the mandate of the Supreme Court's ruling would, therefore, be inapplicable. Andrews, Opinion 90 -018. In any event, you should be advised that your activity, even if Section 3(g) of the Ethics Law were to be applicable, would not regulate your conduct, except with respect to the Office of Attorney General, the "governmental body" with which you are "associated" while employed by the Office of Consumer Advocate. Therefore, any representation which you might undertake with respect to a client or employer before any entity other than the Office of Attorney General would not be restricted by Section 3(g) of the Ethics Law in any event. Your specific inquiries will now be addressed in seriatim by applying them to the foregoing discussion. First, in accordance with the above, you are restricted by the Ethics Law for a period of one (1) year from soliciting business, as a consultant and an expert witness, from the Office of Consumer Advocate. Second, pursuant to Thornburgh, supra, the Ethics Law cannot restrict your activities as an attorney. Third, the Ethics Law does not restrict the solicitation of business from governmental bodies or agencies other than the one with which you were associated, in this case, the Office of Attorney General. Therefore, you may solicit business as set forth in your third inquiry, provided the agency is not the Office of Attorney General, including the Office of Consumer Advocate. As to your fourth question, again, the Ethics Law cannot Rubin, Scott J., 94 -511 February 10, 1994 Page 8 restrict your activities as an attorney. Further, the Pennsylvania Public Utility Commission is not your former governmental body as defined by the Ethics Law so your appearance before that governmental body in any capacity would not be restricted by the Ethics Law. Fifth, there are no differences in any of the above responses if you work as an independent contractor for another consulting firm. See Confidential Opinion, 93 -005. In any case, you would be engaging in representation ", either of yourself or another entity or person, and all restrictions above would be similarly applicable. Finally, the above comprehensively responds to your specific inquiries. Advisories cannot extend beyond the specific facts and questions presented and cannot cover possible scenarios not set forth. Should other questions arise, it is recommended that further advice be sought from the Commission. 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 Senior Assistant Consumer Advocate, you were to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Office of Consumer Advocate, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Office of Attorney General, in its entirety, including the Office of Consumer Advocate. 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 Rubin, Scott J., 94 -511 February 10, 1994 Page 9 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 appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within fifteen (15) days of the date of this Advice pursuant to 51 Pa.Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). isi ncereiy, Vincent J Dop o Chief Counsel