HomeMy WebLinkAbout97-505 TobiasFrank Tobias
15 Farrow Lane
Reinholds, PA 17569
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
January 9, 1997
97 -505
Re: Former Public Employee; Section 3(g); Administrative Officer 3; Department of
Revenue; Bureau of Corporation Taxes.
Dear Mr. Tobias:
This responds to your letter of December 9, 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 an Administrative Officer 3 following termination of
service with the Department of Revenue.
Facts: You resigned from the Department of Revenue (Revenue) as of November
27,1996. Prior to your resignation, you served as Bureau Director, Bureau of
Corporation Taxes with Revenue. You state that your position was considered a senior
management position but you are unsure as to whether your position was considered
policy- making. You represented Revenue, administered application of the law, assured
that all policies were adhered to, and managed day -to -day operations, personnel and
project workload for corporation tax matters only. You had no involvement with other
tax matters or programs managed by Revenue.
You are currently employed as a State and Local Tax Manager with Ernst &
Young, LLP. In that position you would like to represent clients in matters relative to
Pennsylvania taxation. These tasks may include preparation and /or review of
Pennsylvania tax returns; filing and /or representing taxpayers in matters of appeal
(including hearings and conferences) with Revenue, Auditor General, and Attorney
General; and discussions relative to all matters that are administered by the Secretary
of Revenue.
You stress that you were never involved in any way in matters related to
anything other than corporation taxes and it is your belief that you should not be
precluded from any actions involving other tax or program types such as business trust
fund taxes and motor fund taxes.
Tobias, 97 -505
January 9, 1997
Page 2
Copies of your job description and job classification specifications have been
obtained, which documents are incorporated herein by reference. It is noted that your
job classification is "Administrative Officer 3," serving as Assistant to the Director of
the Bureau of Corporation Taxes.
Discussion: In your former capacity as Administrative Officer 3 for the
Department of Revenue, Bureau of Corporation Taxes, 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 Revenue 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:
a
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
Tobias, 97 -505
January 9, 1997
Page 3
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 Revenue in its entirety, including but not
limited to the Bureau of Corporation Taxes, together with any hearings or conferences
where Revenue is participating and you are representing your employer or client,
hereinafter collectively referred to as Agencies. However, your former governmental
body would not include the Board of Finance and Revenue which is a separate,
independent quasi - judicial governmental body. 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 Revenue,
Section 3(g) of the Ethics Law would apply and restrict representation of persons or
new employers vis -a -vis the Agencies.
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:
Tobias, 97 -505
January 9, 1997
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. 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 Agencies.
However, you may not be identified on documents submitted to the Agencies. You
may also counsel any person regarding that person's appearance before the Agencies.
Once again, however, the activity in this respect should not be revealed to the
Agencies. Of course, any ban under the Ethics Law would not prohibit or preclude the
making of general informational inquiries of the Agencies 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:
Tobias, 97 -505
January 9, 1997
Page 5
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(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 your former capacity as Administrative Officer 3 for the
Department of Revenue, Bureau of Corporation Taxes, you would be considered a
"public employee" as defined in the Ethics Law. Upon termination of service with the
Department of Revenue, you became a "former public employee" subject to Section
3(g) of the Ethics Law. The former governmental body is the Department of Revenue
in its entirety, including but not limited to the Bureau of Corporation Taxes, together
with any hearings or conferences where Revenue is participating and you are
representing your employer or client, collectively referred to as Agencies. However,
your former governmental body would not include the Board of Finance and Revenue
which is a separate, independent quasi - judicial governmental body. 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.
This letter is a public record and will be made available as such.
Tobias, 97 -505
January 9, 1997
Page 6
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.
incent J.'bopk
Chief Counsel