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HomeMy WebLinkAbout95-546 UtleyRichard H. Utley 1201 S. 19th Street Harrisburg, PA 17104 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL April 13, 1995 95 -546 Re: Former Public Employee; Section 3(g); Director /Commissioner of Bureau; Department of State. Dear Mr. Utley: This responds to your letter of March 10, 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 director/ commissioner following termination of service with the Department of State. Facts: You were the Director of the Bureau of Charitable Organizations from 1989 to January 1994 and the Commissioner of the Bureau of Professional and Occupational Affairs from January 1994 to February 1995 for the Department of State (Department) . You are interested in pursuing activities that may directly involve these bureaus. You specifically ask if you may register as a professional fundraising counsel with the Bureau of Charitable Organizations, pursuant to the Solicitation of Funds for Charitable Purposes Act, Act 202 of 1990. You also ask if you may obtain a license to be a fight promoter, an activity regulated by the State Athletics Commission. You state that, as a fight promoter, you would not directly or indirectly lobby or represent individuals before the Department. However, you acknowledge, you would be regulated by the Athletic Commission. You request advice from the Commission regarding the above outlined activity. Discussion: As a director /commissioner for bureaus within the Department of State, 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 Utley, Richard H., 95 -546 April 13, 1995 Page 2 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 Charitable Organizations and the Bureau of Professional and Occupational Affairs 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 Department of State. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, Utley, Richard H., 95 -546 April 13, 1995 Page 3 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 bureaus in the Department of State, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Department of State. 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 Department of State. 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, Utley, Richard H., 95 -546 April 13, 1995 Page 4 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 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. Utley, Richard H., 95 -546 April 13, 1995 Page 5 You may assist in the preparation of any documents presented to the Department of State. However, you may not be identified on documents submitted to it. You may also counsel any person regarding that person's appearance before the Department. 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 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. 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. Turning now to your specific questions, first you ask whether you may register with the Bureau of Charitable Organizations as a professional fundraising counsel pursuant to the Solicitation of Funds for Charitable Purposes Act, Act 202 of 1990 (codified at 10 P.S. § §162.1- 162.24). Section 3(g) of the Ethics Law prohibits representation by a former public employee "with promised or actual compensation" on any matter before the former governmental employer. 65 P.S. §403(g). A review of the registration requirements of professional fundraising counsel, 10 P.S. §162.8(a)-(c), indicates that "registration" is not a prohibited Utley, Richard H., 95 -546 April 13, 1995 Page 6 activity under the Ethics Law because the "registration" itself is not for "promised or actual compensation." Therefore, under the Ethics Law, you would not be prohibited from registering as a professional fundraising counsel. However, a review of the contract provisions of the same section of the Act, 10 P.S. §162.8(d),(e), indicates that contracts between professional fundraising counsel and charitable organizations must be approved by the Department of State before a professional fundraising counsel may provide service to or solicitation for a charitable organization. This activity would be prohibited by the Ethics Law because the contract filed with the Department: would constitute "representation" as defined above and would be "with promised or actual consideration." Whether you would be representing the charitable organization or yourself when submitting the contract for approval is not relevant. The Commission has held that the prohibition against representing a person includes the former public official /employee representing himself. Confidential Opinion, 93 -005. Therefore, while registering as a professional fundraising counsel is not in and of itself a prohibited activity, the Ethics Law would prohibit you from doing what the Solicitation of Funds for Charitable Purposes Act would require. You also ask whether you can obtain a license from the State Athletics Commission to be a fight promoter. Again, Section 3(g) of the Ethics Law prohibits representation by a former public employee with promised or actual compensation" on any matter before the former governmental employer. A review of the relevant statutory provisions dealing with licensing of fight promoters, 5 P.S. § §902, 910, indicates that "licensing" is not a prohibited activity under the Ethics Law because the "licensing" itself is not for "promised or actual compensation." Therefore, under the Ethics Law, you would not be prohibited from obtaining a license from the State Ethics Commission to be a fight promoter. However, a review of the permit provisions of the same statue, 5 P.S. § §906, 910, shows that, "[i]n addition to the promoter's license, each promoter shall be required to procure a permit from the [Athletic] Commission for each program of contest or exhibitions before presenting that program." 5 P.S. §906. This activity would be prohibited by the Ethics Law because to receive the permit, the promoter must establish to the Commission that he has certain personal and professional qualities as required by the statute. 5 P.S. §910. Such activity would constitute "representation" as defined earlier and would be "with promised or actual consideration." The fact that you would be representing your own interest in obtaining the permit is not relevant, as outlined previously. Therefore, while obtaining a license from the State Athletics Commission to be a fight promoter is not in and of itself a prohibited activity, the Ethics Law would prohibit you from obtaining a permit for a "program." Utley, Richard H., 95 -546 April 13, 1995 Page 7 This advice is specifically limited in application to the specific questions posed. 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 director /commissioner, you were considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Department of State, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Department of State. 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, 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 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. such. 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 513.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX' transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within fifteen (15) days may result in the dismissal of the appeal. Vincent Dopko Chief Counsel