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HomeMy WebLinkAbout96-573 CiarrocchiGuy Louis Ciarrocchi, Esquire 495 Virginia Avenue Paoli, PA 19301 Dear Mr. Ciarrocchi: 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 18, 1996 96 -573 Re: Former Public Employee; Section 3(g); Senate; Executive Assistant; Counsel to the Senate Finance Committee. This responds to your letter of June 20, 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 a former Executive Assistant and Counsel to the Senate Finance Committee following termination of service with the Senate. Facts: As a former public employee, you request an advisory regarding restrictions as to your future employment as Director of Public Affairs for the Archdiocese of Philadelphia. You are currently an employee of Senator Melissa A. Hart, serving as her Executive Assistant and Counsel to the Senate Finance Committee. You state that you intend to resign your position with Senator Hart when the legislature recesses for the summer, on or about June 28, 1996, and have accepted an offer to work as the Director of Public Affairs for the Archdiocese of Philadelphia beginning July 8, 1996. You have worked for Senator Hart since February 2, 1994 and have not been appointed to serve on any commission, board or governmental committee. You concede that you are a "public employee" as defined by the Ethics Law. In your future position as Director of Public Affairs with the Archdiocese of Philadelphia, you will be the legislative liaison for the Archdiocese to the local governments in Southeastern Pennsylvania, the Commonwealth of Pennsylvania and the federal government. You will be responsible for informing government officials and their staffs of your employer's legislative and public policy positions by phone, mail, and in person. You will be working to enact those positions and to defeat an opposing legislation. You state that both you and your future employer are aware that you may be prohibited from lobbying the Pennsylvania Senate for one year following your termination of public employment and therefore ask the following questions: Ciarrocchi, 96 -573 July 18, 1996 Page 2 1. Are you prohibited from lobbying the Senate for one year and would this prohibition include the House of Representatives, the Executive Branch or any other governmental body? 2. Are you permitted to answer questions or provide information to the Senate. For example, if a legislator asks for a list of catholic schools or churches in his /her district. 3. Are you permitted to write articles for the official newspaper of the Archdiocese which is customarily provided to legislators and their offices? 4. If you prepare a newsletter for your new employer, could it be provided to the Senate if you write one article or if you edit it? If you write an article or edit the newsletter without your name appearing in the newsletter, could it then be given to the Senate? 5. To what extent are you prohibited from answering questions from Senator Hart's staff or other Senator's staff members regarding matters that you handled? For example, explaining why legislation was drafted a certain way. To what extent can you provide assistance to your successor? 6. What are the limits of your activities in your new position? 7. As a member of the Pennsylvania Bar, do the Rules of Professional Conduct allow you more opportunity to participate in the legislative process of the Senate for your new employer? Discussion: In the former capacity as Executive Assistant and Counsel to the Senate Finance Committee for Senator Melissa A. Hart, you would 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 Paced §11.1. Because you have conceded that you are a public employee under the Ethics Law, no analysis of your duties and responsibilities in that position will be made. 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 Senator Hart must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. Ciarrocchi, 96 -573 July 18, 1996 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. 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 Senate. 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 Senate, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Senate. 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 Ciarrocchi, 96 -573 July 18, 1996 Page 4 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 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 -011. Therefore, within the first year after termination of service, you should not engage in any of the prohibited activities outlined above. Ciarrocchi, 96 -573 July 18, 1996 Page 5 You may assist in the preparation of any documents presented to the Senate. However, you may not be identified on documents submitted to the Senate. You may also counsel any person regarding that person's appearance before the Senate. Once again, however, the activity in this respect should not be revealed to the Senate. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Senate 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 applying the definition of "Person" quoted above, the Commission has held that the term includes a former public employee representing himself in providing consulting services to his former governmental body. Confidential Opinion 93 -005. Further, the term "Person" includes a new government employer which is represented by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. Furthermore, Sections 3(b) and 3(o) 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. In answer to the specific questions you pose, you are correct that you are prohibited from lobbying the Senate for the one year period. There would be no prohibition under the Ethics Law as to lobbying the House or the Executive Branch or any governmental body, other than the Senate. You may receive or give general information about schools /churches as long as the activities do not rise to the level of representation as defined in the Ethics Law. If the activity rises to the level of representation, such matters would have to be handled by some other person who is not subject to the prohibitions of the Ethics Law. Regarding articles in the Archdiocese newspaper, the parameters as noted above apply. If there are articles regarding funding needs or beneficial legislation, clearly actions on your part by signing the articles or by editing would be prohibited under the Ethics Law as impermissible representation when supplied to the Senate. However, if such articles would not contain your name as an author, editor, contact person, or in some other capacity, so that you would not engage in representation, then there would be no bar to providing the Senate with such newspapers. Ciarrocchi, 96 -573 July 18, 1996 Page 6 As to having contact with Senator Hart's staff as to matters you handled, you would not be prohibited in such activity, assuming that you are not receiving any compensation or representing your new employer in such activities. The limits of the activities in your new position are outlined above. Lastly, regarding your status as a licensed attorney in Pennsylvania, the Rules of Professional Conduct cannot be addressed in that such is beyond the scope of the Ethics Law. It has been determined that the Ethics Law would not apply to your conduct as an attorney in the practice of law. See, Pennsylvania Public Utility Bar Association v. Thornburgh, 434 A.2d 1327, 62 Pa. Commw. 88 (1981), aff'd &e[ curiam, 450 A.2d 613, 498 Pa. 589 (1982). However, to the extent that your activities do not constitute the practice of law, as for example, engaging in lobbying activity, the prohibitions of the Ethics Law would apply. 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 Executive Assistant and Counsel to the Senate Finance Committee for Senator Melissa A. Hart, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with Senator Hart, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Senate. 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(111, 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 Paced §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 Ciarrocchi, 96 -573 July 18, 1996 Page 7 the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, 1;eAJr T 11° Vincent J. D ko Chief Counsel