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HomeMy WebLinkAbout96-599 ReigleBrenda V. Reigle 87 Bucktail Trail Halifax, PA 17032 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL October 4, 1996 96 -599 Re: Former Public Employee; Section 3(g); Senate; Administrative Officer III. Dear Ms. Reigle: This responds to your letter of September 18, 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 and Administrative Officer III following termination of service with the Senate. Facts: As of September 20, 1996, you resigned your position as an Administrative Officer III with the Pennsylvania Senate. You have accepted the position of Executive Director with the Pennsylvania Utility Contractors Association effective September 23, 1996. During your tenure with the Senate, you worked for Senator Mike Dawida until February 5, 1996 when Senator Dawida resigned his position to take office as a County Commissioner. Following Senator Dawida's resignation, you continued in a "quasi- position" for the Senate Finance Committee. You state that you were asked to do one or two bill analyses for one committee meeting since the committee was under the direction of a new minority Chairman, Senator William Stewart. When the new Senator for the 43rd District was elected and sworn into office in early May, you were placed in a position for the new Senator where you drafted constituent letters concerning the 1996 -97 budget and updated his Internet site. You state that since February 5, 1996, you no longer handled any committee work nor were you in a position where you could influence legislators or their staff concerning legislative issues. Your specific inquiry is whether you, in your new position, would be able to lobby the Senate or part of the Senate. It is your understanding that other opinions have been issued in the past by this Commission on similar situations. Reigle, 96 -599 October 4, 1996 Page 2 Discussion: In the former capacity as an Administrative Officer III for the Senate, 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 Pa.Code § 1 1.1. 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, 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 Senate 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. 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 Reiale, 96 -599 October 4, 1996 Page 3 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 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 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: Reiale, 96 -599 October 4, 1996 Page 4 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. 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 Reiale, 96 -599 October 4, 1996 Page 5 by the former public employee before his former governmental employer. Ledebur, Opinion 95 -007. The fact that you were relegated to only doing legal analyses /constituent letter drafting from February, 1996 until your resignation would not change your status under the Ethics Law. 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. 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 an Administrative Officer III with the Senate, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Senate, 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(1 1), 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 Reigle, 96 -599 October 4, 1996 Page 6 the Commission within thirty (30) days may result in the dismissal of the appeal. cerely, Vincent J.Lbopko Chief Counsel