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HomeMy WebLinkAbout96-571 ZimmermanJohn R. Zimmerman 60 North Railroad Avenue New Holland, PA 17557 Dear Mr. Zimmerman: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 1 71 08 -1 470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL July 11, 1996 96 -571 Re: Former Public Employee; Section 3(g); Executive -Level State Employee; Section 3(i); Director; Governor's Scheduling and Advance Office; Business Consultant /Lobbyist. This responds to your letter of May 28, 1996, 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 the Director of the Governor's Scheduling and Advance Office, following termination of such service. Facts: For the past 16 months, you have served as the Director of the Governor's Scheduling and Advance Office. On June 3, 1996, you began a new career as a business consultant and lobbyist for a local firm. During your state service in the Governor's Office, your responsibilities included organizing the office and developing procedures. Your primary job was to respond to correspondence and prepare lists for members of the senior staff to review for future Gubernatorial events. You state that you did not interact with the staff regarding issues or control access to the Governor and that your position was one of operations, not policy. Your interaction with the Departments related to two areas. You contacted the Cabinet relative to speaking engagements that the Governor could not accept and you also carried their requests regarding meetings and events to the staff for consideration. Copies of your job description, job specifications and organizational chart were requested by the Commission. The following items have been submitted: (1) A document entitled "Scheduling Office Organizational Discussion" which lists the following duties for you: Director (John) — Responsible for all activities in the office. Reviews all correspondence Zimmerman, 96 -571 July 11, 1996 Page 2 Signs all response letters to inquiries Answers telephone questions from constituents regarding scheduling and personal problems originated by a request to see the Governor Prepares lists of invitations for review by the Governor and Chief of Staff Attend Senior Staff Meetings Assign aircraft billing Plan and coordinate State Visits Plan and coordinate Bicycle Tour Liaison with Mrs. Ridge's staff (2) A document entitled "Scheduling Office" which states: The Scheduling Office has two primary functions. First, the Office works closely with the Governor to establish the daily schedules. This requires scheduling meetings, photo opportunities, personal work time, briefings for future meetings, and Gubernatorial events. This Office is responsible for keeping appointments on time and arranging for all travel details during the day. Secondly, the Office is responsible for developing a long range plan by responding to the hundreds of invitations that arrive weekly. This Office functions as the operations center for the administration and the Governor's schedule is the catalyst for the agenda prescribed by the Governor. (3) An organizational chart. All of the aforesaid documents are incorporated herein by reference. Discussion: In the former capacity as Director of the Governor's Scheduling and Advance Office, you would be considered a public official /public employee and an "executive -level state 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. 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 Zimmerman, 96 -571 July 11, 1996 Page 3 through his 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 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 Zimmerman, 96 -571 July 11, 1996 Page 4 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 as a business consultant /lobbyist with a local firm. 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. As for Section 3(i) of the Ethics Law, you would be subject to that provision of law since you would be a former executive -level state employee. However, Section 3(i) would not restrict you from the position of employment as a business consultant and lobbyist with a local firm provided and conditioned upon the assumptions that you did not actively participate in recruiting your new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing your new employer to open or expand a facility or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to your new employer. Upon termination of public service, you also became a "former" public official /public employee subject to Section 3(g) of the Public Official and Employee Ethics Law. To answer your request with respect to Section 3(g), the governmental body with which you were associated while working with the Governor's Scheduling and Advance 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 Zimmerman, 96 -571 July 11, 1996 Page 5 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. 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. The Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901. Based upon the above, the governmental body with which you were associated upon termination of public service would be the Governor's Office in its entirety, including but not limited to the Scheduling and Advance Office. 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 Governor's Scheduling and Advance Office, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the former governmental body, specifically the Governor's Office in its entirety, including but not limited to the Scheduling and Advance Office. 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 Zimmerman, 96 -571 July 11, 1996 Page 6 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 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. Section 3(g) would also prohibit in general 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 pertain to a contract which existed prior to termination of public service. Shay, Opinion 91 -012. However, in the event of work performed on a contract already awarded and not involving the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams /Webster, Opinion 95 -01 1. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities outlined above. Zimmerman, 96 -571 July 11, 1996 Page 7 You may assist in the preparation of any documents presented to the Governor's Office. However, you may not be identified on documents submitted to the Governor's Office. You may also counsel any person regarding that person's appearance before the Governor's Office. Once again, however, the activity in this respect should not be revealed to the Governor's Office. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Governor's 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. 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: In the former capacity as Director of the Governor's Scheduling and Advance Office, you would be considered a public official /public employee and an executive -level state employee subject to the provisions of the Ethics Law. Under Section 3(i) of the Ethics Law, you would not be prohibited from accepting a position of employment as a business consultant and lobbyist with a local firm based upon the assumptions that you did not actively participate in recruiting your new employer to Pennsylvania, and that you did not actively participate in recruiting or inducing your new employer to open or expand a facility or branch in Pennsylvania 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 Scheduling and Advance Office, you became a "former" public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is the Governor's Office in its entirety, including but not limited to the Scheduling and Advance Office. 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. Zimmerman, 96 -571 July 11, 1996 Page 8 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 such. 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. $in erely, Vincent J. opko Chief Counsel