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HomeMy WebLinkAbout95-530 LeczkowskiHenry Leczkowski 213 Old Farm Road Cranberry Township, PA 16066 Dear Mr. Leczkowski: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL March 16, 1995 95 -530 Re: Former Public Employee; Section 3(g); LCB; General Manager. This responds to your letter of February 5, 1995, 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 general manager following termination of service with the Pennsylvania Liquor Control Board. Facts: After being employed by the Pennsylvania Liquor Control Board (LCB) for thirty -two (32) years, you retired on December 30, 1994. Your last and highest position was that of general manager of the Water Works Wine and Spirit Shoppe #0214. You were employed your entire career in Allegheny County. You would like to seek employment as a sales representative for a wine /distilling company. When you called the State Ethics Commission offices on approximately January 25, 1995, you were generally advised about the restrictions of Section 3(g) of the Ethics Law. You interpreted that decision to mean that you could work for a wine /distilling company; however, you would have problems with entering a wine and spirit shoppe as a sales representative. The concern as expressed was that you might influence a manger of the store, due to personal contact with the manager while being employed with the LCB, to order extra merchandise that you are promoting. The nature of your job with a wine /distilling company would be of the lowest stature. You would not be going before any high official of the LCB to purchase your company's product. Your visits to the Pennsylvania Wine and Spirits Shoppes would be to put up displays and signage for a specified period of time as per LCB approval. The LCB also designates the size and locations of the Leczkowski, Henry, 95 -530 March 16, 1995 Page 2 displays. You would also place rebate coupons in the stores as per pre - approvals by the LCB. You would occasionally put up a window display, if approved by the general manager of the store. These window displays do not require or influence the general manager to order extra merchandise. A copy of your job description classification/ specification has been submitted which is incorporated herein by reference. You seek an official ruling on the following two issues: (1) The ability to work in Allegheny County inside the Pennsylvania Wine and Spirit Shoppes regarding the above listed activities; and (2) The ability to work in Erie County inside the Pennsylvania Wine and Spirits Shoppes, to perform the job activities described above, noting that Erie County wherein you have never had any contact with any personnel from Erie County is 100 miles away. Discussion: As a general manager for the LCB, you were 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 §11.1. 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 LCB must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. Leczkowski, Henry, 95 -530 March 16, 1995 Page 3 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 LCB. 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 LCB, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the LCB. 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 Leczkowski, Henry, 95 -530 March 16, 1995 Page 4 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 LCB. 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. 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 Leczkowski, Henry, 95 -530 March 16, 1995 Page 5 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 LCB. However, you may not be identified on documents submitted to the LCB. You may also counsel any person regarding that person's appearance before the LCB. Once again, however, the activity in this respect should not be revealed to the LCB. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the LCB 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. Leczkowski, Henry, 95 -530 March 16, 1995 Page 6 Furthermore, 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. As to the two questions you pose, it is clear from both the definition of the term "represent" which includes personal appearances and numerous prior Commission precedent on this issue, that personal appearances by you in the one year period before LCB stores in Allegheny County, Erie County or elsewhere would be prohibited representation of your new employer before your former governmental body, LCB. 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 general manager of the LCB, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the LCB, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the LCB. 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. 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 Leczkowski, Henry, 95 -530 March 16, 1995 Page 7 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 1 . The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Sincerely, t o:v4:,-,J001 1 )1 40 Vincent W. Dop o Chief Counsel