HomeMy WebLinkAbout95-614 BigleyDear Mr. Bigley:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 2, 1995
Jonathan P. Bigley, Senior Associate
W.A. Hawkins & Associates
240 North Third Street, Suite 900
Harrisburg, PA 17101
95 -614
Re: Former Public Official /Public Employee; Section 3(g);
Executive -Level State Employee; Section 3(i); Special
Assistant to Governor; Governor's Office.
This responds to your letter of September 29, 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 Special Assistant to
the Governor following termination of service with the Governor's
Office.
Facts: Having made the transition from Commonwealth employment to
private employment, you request an advisory as to whether the
Public Official and Employee Ethics Law places any restrictions
upon your ability to represent clients before the Governor's
Office, the General Assembly, and any administrative agency.
You have previously served the Commonwealth of Pennsylvania as
follows: Special Assistant to Governor Robert P. Casey, July 1994 -
January 1995; Deputy Secretary for Legislative Affairs, January
1991 - July 1994; and Assistant to the Secretary for Legislative
Affairs, May 1989 - January 1991. Prior to your service in the
Governor's Office you served several members of the House of
Representatives, from January, 1985 to May, 1989.
You are presently a senior associate with W.A. Hawkins
Associates. W.A. Hawkins Associates is a government and corporate
affairs firm which represents businesses and non - profit
organizations before the Governor's Office, the General Assembly
and any administrative agency.
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 2
Finally, you note that in addition to your government service,
you were admitted to the bar of the Pennsylvania Supreme Court on
May 24, 1995.
Per the Governor's Office, there are no job descriptions,
class specifications, or organizational charts for you in your
former position. A chart has been prepared indicating that while
you served as Deputy Secretary for Legislative Affairs -- your
next -to -last position -- you reported to the Secretary for
Legislative Affairs. No information has been provided as to your
specific duties as Special Assistant to the Governor.
Discussion: It is initially noted that pursuant to Sections 7(10)
and 7(11) of the Ethics Law, 65 P.S. § §407(10), (11), advisories
are issued to the requestor based upon the facts which the
requestor has submitted. In issuing the advisory based upon the
facts which the requestor has submitted, the Commission does not
engage in an independent investigation of the facts, nor does it
speculate as to facts which have not been submitted. It is the
burden of the requestor to truthfully disclose all of the material
facts relevant to the inquiry. 65 P.S. § §407(10), (11). An
advisory only affords a defense to the extent the requestor has
truthfully disclosed all of the material facts.
As Special Assistant to Governor Robert P. Casey, you were a
public official /public employee within the definition of these
terms 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. In addition, since you were an executive -level state
employee as that term is defined under the Ethics Law, you are
subject to the requirements of Section 3(i) of the Ethics Law,
infra.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 3
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member of his immediate family or
a business with which he or a member of his
immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
"Executive -level State employee." The
Governor, Lieutenant Governor, cabinet
members, deputy secretaries, the Governor's
office staff, any State employee with
discretionary powers which may affect the
outcome of a State agency's decision in
relation to a private corporation or business
or any employee who by virtue of his job
function could influence the outcome of such a
decision.
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
anything of monetary value 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.
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
Higley, Jonathan P. 95 -614
November 2, 1995
Page 4
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.
Section 3(i) of the Ethics Law provides:
Section 3. Restricted Activities
(i) No former executive -level State
employee may for a period of two years from
the time that he terminates his State
employment be employed by, receive
compensation from, assist or act in a
representative capacity for a business or
corporation that he actively participates in
recruiting to the Commonwealth of Pennsylvania
or that he actively participated in inducing
to open a new plant, facility or branch in the
Commonwealth or that he actively participated
in inducing to expand an existent plant or
facility within the Commonwealth, provided
that the above prohibition shall be invoked
only when the recruitment or inducement is
accomplished by a grant or loan of money or a
promise of a grant or loan of money from the
Commonwealth to the business or corporation
recruited or induced to expand.
Under Section 3(a) of the Ethics Law quoted above, a public
official /employee may not use the authority of public office/
employment or confidential information received by holding such a
public position for the private pecuniary benefit of himself, a
member of his immediate family, or business with which he or a
member of his immediate family is associated.
In applying Section 3(a) of the Ethics Law to the proffered
facts, Section 3(a) would prohibit you from using the position or
emoluments of your public position or confidential information to
advance an opportunity of private employment. Once again, it is
not suggested that you have engaged in such conduct and the
foregoing is provided to give a complete response to your inquiry.
Having set forth the above principles, the factor of how your
status as an attorney impacts upon the application of Sections 3(g)
and 3(i) shall be addressed.
Pennsylvania Public Utilities Bar Association v. Thornburgh,
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 5
62 Pa. Cmwlth. 88, 434 A.2d 1327 (1987), aff'd., 498 Pa. 589, 450
A.2d 613 (1982), dealt with the applicability of Section 3(e) of
the Ethics Act of 1978 to former Commonwealth attorneys in the
practice of law following termination of public employment. In the
cited case, Commonwealth Court held that Section 3(e) of Act 170 of
1978, the predecessor to Section 3(g) of Act 9 of 1989, was an
impermissible intrusion upon the authority of the Supreme Court to
regulate the conduct of attorneys:
We conclude that Section 3(e) of the Ethics Law is
an impermissible intrusion by the legislature into an
area reserved by the Constitution to the Supreme Court
and one where the Supreme Court has acted to regulate the
conduct of attorneys . . . . What is clear is that the
Supreme Court has acted pursuant to its exclusive
authority and that action effectively annuls the
legislature's attempt to regulate the same conduct as it
pertains to lawyers.
Id., 434 A.2d at 1331.
This Commission has interpreted the above decision to mean
that there are no prohibitions under Section 3(g) of Act 9 of 1989
upon the conduct of former public officials /public employees who
are attorneys insofar as their conduct constitutes the practice of
law. Spataro, Opinion 89 -009.
Subsequent to the above decision, the Pennsylvania Supreme
Court in Maunus v. State Ethics Commission, 518 Pa. 592, 544 A.2d
1324 (1988), considered the issue of whether publicly employed
attorneys could be required to file Statements of Financial
Interests. The Court ruled that such a reporting requirement was
permissible, noting that the Ethics Law provision did not conflict
with any court rule as to the conduct of attorneys:
Employers in the private sector may properly adopt
professional and ethical standards and in pursuit
thereof, may require certain conduct of its employees,
including attorneys, without running afoul of this
Court's supervisory authority over the bar of this
Commonwealth. Any intrusion upon the power of this Court
to prescribe general rules governing the practice,
procedure and conduct of judicial proceedings is viewed
with the greatest of skepticism.
* * *
Our conclusion is buttressed by the fact that the
financial disclosure requirement imposed by the Ethics
Act is not incompatible with any of the rules applicable
to attorneys in this Commonwealth.
Higley, Jonathan P. 95 -614
November 2, 1995
Page 6
Id. at 1326, 1328.
Most recently, in Confidential Opinion 95 -003, the Commission
reviewed the above authorities in considering the restrictions of
Section 3(i) upon a former executive -level state employee who was
an attorney. The Commission concluded as follows:
. . . [T]o the extent that there is judicial regulation,
Section 3(i) of the Ethics Law cannot be applied to
restrict an attorney in the practice of law as to his
employment, his receipt of compensation or his
representation of clients. It is clear from the PUC Bar
Association case that the restriction of Section 3(i) as
to an attorney vis -a -vis representing clients is
inapplicable. The only other restriction imposed by
Section 3(i) relates to employment or the receipt of
compensation. Under the principles of the PUC Bar
Association and Maunus cases, such employment An An
attorney or the receipt of compensation (fee) as an
attorney are matters on which the Supreme Court has
promulgated rules of conduct. Accordingly, the
restrictions of Section 3(i) are not applicable to
attorneys in the practice of law.
If, however, the activities intended to be
undertaken do not fall within the category of the
"practice of law," the prohibitions of Section 3(i) of
the Ethics Law would be applicable. An activity which
would not constitute the "practice of law" would be
employment by a business /corporation as a non - lawyer and
acting in a non - lawyer capacity, as for example a
lobbyist. However, assuming that the activities intended
to be undertaken are in the capacity of an attorney, such
activities would constitute the practice of law and the
provisions of Section 3(i) of the Ethics Law, pursuant to
the mandate of the Supreme Court's ruling, would not be
applicable. Andrews, Opinion 90 -018.
Confidential Opinion, 95 -003, at 6 -7.
The facts which you have submitted do not reveal whether your
proposed representation would constitute the practice of law.
Therefore, this advisory will necessarily be limited to providing
general guidance to you.
Based upon the above precedents, if and to the extent that
your proposed conduct would constitute the practice of law, neither
Section 3(g) nor Section 3(i) of the Ethics Law would apply to
restrict you. If and to the extent that your proposed conduct
Higley, Jonathan P. 95 -614
November 2, 1995
Page 7
would not constitute the practice of law, the restrictions of
Section 3(g) and Section 3(i) would apply as detailed below.
Excluding your status as an attorney, the applicability of
Section 3(i) turns upon whether you actively participated in
recruiting or inducing a business /corporation to open or expand a
facility or branch in Pennsylvania via a grant or loan of money or
a promise of a grant or loan of money from the Commonwealth. A
very detailed review of Section 3(i), both in terms of analysis and
application of the phrase "actively participated" is set forth in
Confidential Opinion 94 -011.
In Confidential Opinion 94 -011, the Commission held that the
restrictions of Section 3(i) apply with respect to a new employer
as well as its clients.
Section 3(i) would not restrict you from employment with W.A.
Hawkins Associates provided you did not actively participate in
recruiting or inducing said firm to open or expand a facility or
branch in the Commonwealth through a grant or loan of money or a
promise of a grant or loan of money from the Commonwealth of
Pennsylvania to said firm. Likewise, Section 3(i) would not
restrict you from performing work for client(s) of W.A. Hawkins
Associates provided that in your former public postion, you did not
actively participate in recruiting or inducing such business(es) or
corporation(s) which are now client(s) to open or expand a facility
or branch in the Commonwealth through a grant or loan of money or
a promise of a grant or loan of money from the Commonwealth of
Pennsylvania.
As for Section 3(g), upon termination of public service, you
became a "former" public official /public employee subject to
Section 3(g) of the Public Official and Employee Ethics Law. In
applying Section 3(g), the governmental body with which you have
been associated while working with the Governor's Office 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
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 8
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.
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 upon termination of public service would certainly
include, but would not necessarily be limited to, the Governor's
Office in its entirety. Based upon the extremely limited facts
which have been submitted, and which fail to provide any indication
of your specific duties as Special Assistant to the Governor, this
Advice cannot conclusively determine whether your former
governmental body would extend beyond the Governor's Office.
Therefore, you are advised generally that your former governmental
body would also include any and all boards, commissions, agencies
and /or other entities or bodies politic as to which you were a
member or acted in the Governor's stead, or otherwise exercised
influence, discretionary authority or control. See, Freeman,
Opinion 91 -010; Confidential Opinion 94 -011.
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. See,
also, Sirolli, Opinion 90 -006; Sharma, Opinion 90- 009 -R.
Therefore, within the first year after termination of service
with the Governor's Office, Section 3(g) of the Ethics Law would
apply and restrict representation of persons or new employers vis-
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 9
a -vis your former governmental body.
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
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
Higley, Jonathan P. 95 -614
November 2, 1995
Page 10
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 your former governmental body. However, you may not be
identified on documents submitted to your former governmental body.
You may also counsel any person regarding that person's appearance
before your former governmental body. Once again, however, the
activity in this respect should not be revealed to your former
governmental body. Of course, any ban under the Ethics Law would
not prohibit or preclude the making of general informational
inquiries of your former governmental body 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 and /or client.
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.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
Higley, Jonathan P. 95 -614
November 2, 1995
Page 11
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. Specifically not
addressed herein is the Governor's Code of Conduct.
Conclusion: In your former capacity as Special Assistant to
Governor Robert P. Casey, you would be considered a public
official /public employee and an executive -level state employee
subject to the provisions of the Ethics Law. Neither Section 3(g)
nor Section 3(i) of the Ethics Law would restrict you to the extent
your proposed activities constitute the practice of law.
Furthermore, Section 3(i) of the Ethics Law would not restrict you
from employment with W.A. Hawkins Associates conditioned upon the
assumption that you did not actively participate in inducing or
recruiting said firm to open or expand a facility or branch through
a grant or loan of money or a promise of a grant or loan of money
from the Commonwealth of Pennsylvania. Under Section 3(i) of the
Ethics Law, you would not be prohibited from representing,
receiving compensation from, or assisting client(s) of W.A. Hawkins
Associates conditioned upon the assumption that in your former
public position, you did not actively participate in inducing or
recruiting such business(es) or corporation(s) which are now
client(s) to open or expand a facility or branch through a grant or
loan of money or a promise of a grant or loan of money from the
Commonwealth of Pennsylvania. Upon termination of service with the
Governor's Office, you became a "former" public official /public
employee subject to Section 3(g) of the Ethics Law. The former
governmental body includes the Governor's Office and any and all
boards, commissions, agencies and /or other entities or bodies
politic as to which you were a member or acted in the Governor's
stead, or otherwise exercised influence, discretionary authority or
control. The restrictions as to representation outlined above must
be followed, to the extent that such representation does not
constitute the practice of law. 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
Bigley, Jonathan P. 95 -614
November 2, 1995
Page 12
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 thirty (30)
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). Failure to file
such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
Sin rely,
Vincent J. Dopko
Chief Counsel
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