HomeMy WebLinkAbout98-530 BarbushAnthony F. Barbush, Senior Associate
W.A. Hawkins Associates
240 N. 3rd St.
Harrisburg, PA 17101
Dear Mr. Barbush:
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 19, 1998
98 -530
Re: Former Public Official /Public Employee; Section 3(g); Executive -Level State
Employee; Section 3(i); Minority Executive Director; Senate; Senate Banking and
Insurance Committee.
This responds to your letter of February 16, 1998 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 Minority Executive Director to the Senate Banking
and Insurance Committee following termination of service with the Pennsylvania
Senate.
Facts: You are a former employee of the Commonwealth of Pennsylvania, having
most recently served as Minority Executive Director to the Senate Banking and
Insurance Committee from December, 1996 to January 28, 1998. You previously
served in the following capacities: Administrative Officer to the Senate Minority
Leader, January 1995 — December 1996; Director of Legislative Relations, Office of
the Lieutenant Governor, March 1993 — January 1995; and in various capacities in the
House of Representatives from September 1975 — March 1993.
You are currently employed by W.A. Hawkins Associates, a government and
corporate affairs firm that represents businesses and non - profit organizations before
the executive, administrative and legislative agencies of the Commonwealth. You seek
an advisory from the State Ethics Commission as to what restrictions may affect your
representation of clients before any branch or agency of state government in your
current capacity.
Discussion: In the former capacity as Minority Executive Director to the Senate
Banking and Insurance Committee within the Pennsylvania Senate, 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.
Barbush, 98 -530
March 19, 1998
Page 2
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
(1) 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 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. 94-011. However, Section 3(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for your new employer and /or its clients, provided and
conditioned upon the assumptions that you did not actively participate in recruiting
it /them to Pennsylvania, and that you did not actively participate in recruiting or
inducing it /them 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.
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
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).
Barbush, 98 -530
March 19, 1998
Page 3
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.
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,
Barbush, 98 -530
March 19, 1998
Page 4
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 is the Pennsylvania Senate in its entirety, including but not limited to
the Senate Banking and Insurance Committee. Therefore, for the first year after
termination of your service with the Senate, Section 3(g) of the Ethics Law would
apply and restrict "representation" of "persons" before the Senate.
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
code of conduct other than the Ethics Law has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: Upon termination of service as the Minority Executive Director to
the Senate Banking and Insurance Committee, 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 W.A. Hawkins
Associates and /or its clients based upon the assumptions that you did not actively
participate in recruiting it /them to Pennsylvania, and that you did not actively
participate in recruiting or inducing it /them 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
is the Pennsylvania Senate it its entirety, including but not limited to the Senate
Banking and Insurance Committee. The propriety of the proposed conduct has only
been addressed under the Ethics Law.
Barbush, 98 -530
March 19, 1998
Page 5
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 fu// Commission. A personal
appearance before the Commission will be scheduled and a forma/ 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.
ncerely,
Vincent J. Dopko
Chief Counsel