HomeMy WebLinkAbout95-586 FergusonSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG. PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 20, 1995
Edward T. Ferguson
334 16th Street
New Cumberland, PA 17070 95 -586
Re: Former Public Employee; Section 3(g); LCB; Enforcement Officer
III.
Dear Mr. Ferguson:
This responds to your letter of June 22, 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 an enforcement officer
following termination of service with the Liquor Control Board
(LCB) .
Facts: After being employed by the LCB as an Enforcement Officer
III, you retired on December 30, 1994. You have recently been
offered a position acting as a consultant for various law firms in
their attempts to acquire liquor license approvals for their
clients. Your responsibilities would be to obtain tax clearances
from the Department of Revenue (DR) and Labor and Industry (LI),
criminal history checks from the Pennsylvania State Police (SP) and
filing of applications with the LCB. You assert that you would not
be representing any individuals before the LCB, but would merely
act as a messenger for the attorneys. In the past, other retirees
have gone on to perform the same duties. You seek advice as to
whether this conduct transgresses the State Ethics Act. A copy of
your job description classification /specification has been
submitted which is incorporated herein by reference.
Discussion: As an Enforcement Officer III for the LCB, 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. §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,
Ferguson, Edward T., 95 -586
July 20, 1995
Page 2
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 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.
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,
Ferguson, Edward T., 95 -586
July 20, 1995
Page 3
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
agency or a local government but the entire
unit..." Legislative Journal of House, 1989
Sesion, 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:
Ferguson, Edward T., 95 -586
July 20, 1995
Page 4
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 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
Ferguson, Edward T., 95 -586
July 20, 1995
Page 5
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.
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 specific inquiries you pose, there would be no
prohibition under the Ethics Law as to contacts with DR or LI
because those departments are not your governmental body. As to
the LCB which is your governmental body, action which would be
limited to delivering an application would not rise to the level of
representation, but any additional actions such as discussing the
application with personnel or comparable type activities would rise
to the level of a prohibited personal appearance. Caution must be
exercised so that such activity is limited to merely a delivery
function.
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.
Ferguson, Edward T., 95 -586
July 20, 1995
Page 6
Conclusion: As an Enforcement Officer III in the LCB, you are
be considered a "public employee" as defined in the Ethics Law.
Upon termination of service with the LCB, you would become 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, 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.
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 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 thirty (30) 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 thirty
(30) days may result in the dismissal of the appeal.
cerely,
c
•_
Vincent,. Dopko
Chief Counsel