HomeMy WebLinkAbout97-520 BakerK. Scott Baker
Secretary of Legislative Affairs
Office of the Governor
Harrisburg, PA 17120
Dear Mr. Baker:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
February 10, 1997
97 -520
Re: Former Public Official /Public Employee; Section 3(g); Executive -Level State
Employee; Section 3(i); Office of the Governor; Secretary of Legislative Affairs.
This responds to your letter of January 6, 1997 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 Secretary of Legislative Affairs following
termination of service with the Office of the Governor.
Facts: As of January 10, 1997, you resigned your position as Secretary of
Legislative Affairs for Governor Ridge to accept a position as Vice - President for Public
Affairs for the Pittsburgh Regional Alliance (PRA) on January 14, 1997.
The Secretary of Legislative Affairs is a cabinet -level position reporting to the
Governor and his Chief of Staff. You enclosed a copy of the job description for the
Office of Legislative Affairs from the Pennsylvania Manual which is incorporated herein
by reference. As Secretary of Legislative Affairs, you assisted in the development of
the Governor's legislative program and communicated the Governor's views to the
General Assembly. Your duties included arranging meetings with legislators and
legislative leaders, participating in Administration development of policies and budgets,
and coordinating legislative liaisons for the department and agencies under the
direction of the Governor. In addition, I served as the Harrisburg contact point for the
Governor's Washington office and had input into federal policy- making.
Your new position involves the representation of the Pittsburgh region's interest
as defined and supported by a consortium of Pittsburgh business, industry and
economic development organizations. I will advocate for regional interests through the
legislative process at both the state and federal levels.
Baker, 97 -520
February 10, 1997
Page 2
You request an advisory for clarification of any restrictions and prohibitions
under the Ethics Law as to your interaction with the Ridge Administration.
Discussion: In your former capacity as Secretary of Legislative Affairs for the
Office of the Governor, 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
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
Baker, 97 -520
February 10, 1997
Page 3
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
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 with the
PRA. 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 with PRA provided and
conditioned upon the assumptions that you did not actively participate in recruiting
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February 10, 1997
Page 4
PRA to Pennsylvania, and that you did not actively participate in recruiting or inducing
PRA 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 PRA.
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 Office of the Governor 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
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 Office of the Governor in its entirety,
including the Washington 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
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February 10, 1997
Page 5
(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 PRA, 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 Office of the
Governor in its entirety.
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;
Baker, 97 -520
February 10, 1997
Page 6
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 Office of
the Governor. However, you may not be identified on documents submitted to the
Office of the Governor. You may also counsel any person regarding that person's
appearance before the Office of the Governor. Once again, however, the activity in
this respect should not be revealed to the Office of the Governor. Of course, any ban
under the Ethics Law would not prohibit or preclude the making of general
informational inquiries of the Office of the Governor 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 your former capacity as Secretary of Legislative Affairs for the
Office of the Governor, you would be considered a public official /public employee and
an "executive -level state employee" subject to the provisions of the Ethics Law. Under
Baker, 97 -520
February 10, 1997
Page 7
Section 3(i) of the Ethics Law, you would not be prohibited from accepting a position
of employment with PRA based upon the assumptions that you did not actively
participate in recruiting PRA to Pennsylvania, and that you did not actively participate
in recruiting or inducing PRA 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 Office of the
Governor, you became a "former" public official /public employee subject to Section
3(g) of the Ethics Law. The former governmental body is the Office of the Governor
in its entirety. 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.
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.
cerely,
incent J'Dopk
Chief Counsel