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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