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HomeMy WebLinkAbout98-502 BenderJeannine M. Bender 4859 Hawthorne Road Harrisburg, PA 17111 Re: Former Public Official /Public Employee; Section 3(g); Executive -Level State Employee; Section 3(i); Legislative Liaison; Policy Director; Department of Health. Dear Ms. Bender: ADVICE OF COUNSEL This responds to your letter of December 10, 1997 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employe Ethics Law presents any restrictions upon employment of a Policy Director following termination of service with the Commonwealth of Pennsylvania, Department of Health. Facts: As the former Policy Director for the Commonwealth of Pennsylvania, Department of Health ( "Department of Health "), you seek an advisory from the State Ethics Commission. STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 January 12, 1998 98 -502 You served as Policy Director from July, 1996 to August 27, 1997. Prior to serving as Policy Director, you served as Legislative Liaison for the Department of Health from August 1995 to July 1996. You resigned from the Department of Health on August 27, 1997 and are currently working for a financial services firm. However, you are considering accepting a position as a lobbyist for a corporation. You note that in May,1994, you previously left the Department of Public Welfare to assume a lobbying position under similar circumstances, at which time you obtained an advisory (Bender, Advice of Counsel No. 94 -588), detailing the restrictions that applied to you at that time. You now seek an advisory as to the restrictions that apply to you at this time. Copies of your job classification specifications and organizational chart for your position as Policy Director have been obtained and are incorporated herein by reference. It is noted that your job classification was "Executive Policy Manager I." Bender, 98 -502 January 12, 1998 Page 2 Copies of your job description and job classification specifications for your prior position as a Legislative Liaison (classified as a Legislative Liaison 3) have also been obtained and are incorporated herein by reference. Discussion: In the former capacity as Policy Director for Commonwealth of Pennsylvania, Department of Health, you would be considered a public official /public employee and an "executive -level State employee" subject to the Public Official and Employe Ethics Law ( "Ethics 'Law ") and the Regulations of the State Ethics Commission. See, 65 P.S. §402; 51 Pa.Code § 1 1.1. Consequently, upon termination of public service, you became a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 3(g) and Section 3(i) of the Ethics Law. Section 3(i) restricts former executive -level State employees as follows: 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. Section 3(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 3(i) apply even where the business relationship is indirect, such as where the business in question is a client of the new employer, rather than the new employer itself. See, ‘Confidential Opinion No. 94 -01 1. However, Section 3(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a corporation provided and conditioned upon the assumptions that you did not actively participate in recruiting the corporation to Pennsylvania, and that you did not actively participate in recruiting or inducing the corporation to open or expand a plant, 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 the corporation. Unlike Section 3(i), Section 3(g) does not prohibit a former public official /public employee from accepting a position of employment. However, it does restrict the Bender, 98 -502 January 12, 1998 Page 3 former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": 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. 65 P.S. §403(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Law as follows: 65 P.S. §402. 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "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. The term "Person" is very broadly defined. It includes the former public employee himself, Confidential Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (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; and (5) lobbying. Popovich, Opinion 89 -005. Bender, 98 -502 January 12, 1998 Page 4 Listing one's name as the person who will provide technical assistance on a 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) also generally prohibits 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 that existed prior to termination of public service, Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve 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 A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the public official /public employee may not be identified on documents submitted to the former governmental body. The public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Law would not prohibit or preclude making general informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Section 3(g) only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you have been associated upon termination of public service would be the Department of Health in its entirety. Therefore, for the first year after termination of your service with the Department of Health, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before the Department of Health. Based upon the facts which have been submitted, this Advice has addressed the ,applicability of Sections 3(g) and 3(i) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 3(a) of the Ethics Law. Further, you are advised that 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 judgment 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 Bender, 98 -502 January 12, 1998 Page 5 code of conduct other than the Ethics Law 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: Upon termination of service as Policy Director for the Commonwealth of Pennsylvania, Department of Health ( "Department of Health "), you became a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 3(g) and Section 3(i) of the Ethics Law. Under Section 3(i) of the Ethics Law, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a corporation based upon the assumptions that you did not actively participate in recruiting the corporation to Pennsylvania, and that you did not actively participate in recruiting or inducing the corporation to open or expand a plant, 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. With regard to Section 3(g), the restrictions as outlined above must be followed. The former governmental body would be the Department of Health in its entirety. 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 would require that a Statement of Financial Interests be filed by no later than May 1 of the year after 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 §1 3.2(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. Vincent J.:+opko Chief Counsel