HomeMy WebLinkAbout97-549 McLaughlinSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
April 2, 1997
Brenda H. McLaughlin
W.A. Hawkins Associates
240 North Third Street
Suite 900
Harrisburg, PA 17101 97 -549
Re: Former Public Employee; Section 3(g); Director of State and Federal Relations,
Legislative Liaison 3; Director of Policy; Department of Health; Alternate
Member, Appalachian States Low -Level Radioactive Waste Commission.
Dear Ms. McLaughlin:
This responds to your letter of March 4, 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 former Director of Policy and Director of State and
Federal Relations following termination of service with the Department of Health.
Facts: You recently resigned as Director of State and Federal Relations with the
Department of Health, having held that position from July 1, 1996 until February 28,
1997. You were previously the Director of Policy for the Department of Health from
May, 1995 until June, 1996. In addition, Governor Ridge appointed you as an
Alternate Member of the Appalachian States Low -Level Radioactive Waste Commission
in November, 1995 and you resigned from that position effective February 28, 1997.
You request an advisory as to any restrictions under the Ethics Law regarding
your representation of clients before the Governor's Office, the Department of Health,
any other administrative agency, or the General Assembly. You are currently employed
by W.A. Hawkins Associates (Hawkins), a government and corporate affairs firm
which represents business and non - profit organizations before these governmental
bodies.
Documents relative to your former employment with the Department of Health
have been obtained and are incorporated herein by reference. These documents
include a letter dated June 28, 1996 from Edward T. Petrovay, Employment and
Compensation Manager (for Daniel F. Hoffman, Acting Secretary) to you advising you
of your reassignment from an Executive Policy Manager 3 to a Legislative Liaison 3
McLaughlin, 97 -549
April 2, 1997
Page 2
non -civil service, in the Office of State and Federal Relations. The incorporated
documents also include a notation from Edward Petrovay that you held the class of
Legislative Liaison 3, and that there is no signed job description on file for you in that
position. Mr. Petrovay has provided an unsigned job description for a Legislative
Liaison 3 with the Bureau of State and Federal Relations in the Department of Health,
together with the job classification specifications for a Legislative Liaison 3.
Discussion: In each of your former capacities as Director of Policy for the
Department of Health and Director of State and Federal Relations for the Department
of Health, 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 fact that in each of these positions, 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.
In your former capacity as an Alternate Member of the Appalachian States Low -
Level Radioactive Waste Commission, you may or may not have been a "public
official" subject to the Ethics Law, depending upon whether that body is merely
advisory and whether as a multi -state agency governed by interstate compacts (see,
Pennsylvania's at 35 P.S. §7125.1 el seq.), its Pennsylvania Members are excluded
from coverage under the Ethics Law pursuant to the reasoning enunciated in DRPA v.
SEC, 585 A.2d 587 (1991). Under the facts which you have submitted, you do not
seek to represent clients before the Appalachian States Low -Level Radioactive Waste
Commission and so this Advice does not undertake an analysis of the compacts and
DRPA, supra. However, if during the one year period of applicability of Section 3(g)
you would need a definitive determination as to your status as a former Alternate
Member of the Appalachian States Low -Level Radioactive Waste Commission, further
advice may be sought from this Commission.
In any event, with regard to your former positions with the Department of
Health, upon termination of public service, you became 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, your former governmental body 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:
McLaughlin, 97 -549
April 2, 1997
Page 3
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 at least be the Department of Health in its
entirety, including but not limited to the Bureau of State and Federal Relations. 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 Department
of Health, Section 3(g) of the Ethics Law would apply and restrict representation of
persons or new employers vis -a -vis the Department of Health.
For the reasons noted above, your former governmental body could also
conceivably include the Appalachian States Low -Level Radioactive Waste Commission
and, as indicated above, should a conclusive determination in that regard be required,
you may seek further advice from this Commission.
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
McLaughlin, 97 -549
April 2, 1997
Page 4
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;
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.
McLaughlin, 97 -549
April 2, 1997
Page 5
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 your former
governmental body. However, you may not be identified on documents submitted to
your former governmental body. You may also counsel any person regarding that
person's appearance before your former governmental body. Once again, however,
the activity in this respect should not be revealed to your former governmental body.
Of course, any ban under the Ethics Law would not prohibit or preclude the making of
general informational inquiries of your former governmental body 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(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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: In each of your former capacities as Director of Policy for the
Department of Health and Director of State and Federal Relations for the Department
of Health, you would be considered a "public employee" as defined in the Ethics Law.
In your former capacity as an Alternate Member of the Appalachian States Low -Level
Radioactive Waste Commission, you may or may not have been a "public official"
subject to the Ethics Law, a definitive determination as to which you may obtain, if
needed, through a further request for advice. Upon termination of service with the
Department of Health, you became a "former public employee" subject to Section 3(g)
of the Ethics Law. The former governmental body is the Department of Health in its
McLaughlin, 97 -549
April 2, 1997
Page 6
entirety, including but not limited to the Bureau of State and Federal Relations, and
may also include the Appalachian States Low -Level Radioactive Waste Commission as
noted above. 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 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.
Sincerely,
Vincent J .Dop / o
Chief Counsel