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HomeMy WebLinkAbout98-591 KeenanMary M. Keenan Associate Director Associated Petroleum Industries of PA 240 N. 3rd St., PO Box 925 Harrisburg, PA 17108 Dear Ms. Keenan: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL September 10, 1998 FAX : (717) 787 - 0806 • Web Site: www.ethics.state.pa.us • e - mail: sec©state.pa.us 98 -591 Re: Former Public Employee; Section 3(g); Minority Executive Director; House Consumer Affairs Committee. This responds to your letter of August 10, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of a Minority Executive Director following termination of service with the House Consumer Affairs Committee. Facts: As the former Minority Executive Director of the House Consumer Affairs Committee, you request an advisory from the State Ethics Commission regarding post - employment restrictions under the Ethics Law. You served as the Minority Executive Director of the House Consumer Affairs Committee from March, 1997 through July 10, 1998. You also previously served as: Minority /Majority Executive Director of the House Agriculture Committee from January, 1992 through March, 1997; Executive Director of the Democratic Legislative Development Office from April, 1989 through December, 1991; and as an employee of two nonpartisan legislative service agencies from August, 1980 through April 1989. Having terminated your Commonwealth employment, you are currently employed by the Associated Petroleum Industries of Pennsylvania ( "APIP "), an industry consortium that represents businesses before the executive, legislative, and administrative agencies of the Commonwealth. You request an advisory from the State Ethics Commission regarding any restrictions which may affect your representation of clients before any branch or agency of state government, and specifically with regard to your potential participation in: 1) monitoring legislative committee meetings, public hearings, and informational meetings; 2) entertaining Members of the General Assembly; 3) having lunches and /or dinners with House Members; 4) attending political fundraisers; and 5) having your name appear on APIP letterhead in routine correspondence to House Members. Keenan, 98 -591 September 10, 1998 Page 2 Discussion: There is no question that in your former capacity as Minority Executive Director of the House Consumer Affairs Committee, you would be considered a public official /public employee subject to the Public Official and Employee 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 subject to Section 3(g) of the Public Official and Employee Ethics Law. While Section 3(g) does not prohibit a former public official /public employee from accepting a position of employment, 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). 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. Keenan, 98 -591 September 10, 1998 Page 3 The term "Person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also 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 /public 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 -01 1. 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 /public 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 House of Representatives in its entirety. Therefore, for the first year after termination of your service with the House of Representatives, Section 3(g) of the Ethics Law would apply and restrict "representation" of "persons" before the House of Representatives. Having set forth the restrictions of Section 3(g) of the Ethics Law, your specific inquiries shall be addressed. You state that you are specifically interested in the restrictions that would apply to your potential participation in: 1) monitoring legislative committee meetings, public Keenan, 98 -591 September 10, 1998 Page 4 hearings, and informational meetings; 2) entertaining Members of the General Assembly; 3) having lunches and /or dinners with House Members; 4) attending political fundraisers; and 5) having your name appear on APIP letterhead in routine correspondence to House Members. These inquiries shall be addressed seriatim. You are reminded that to the extent restrictions would apply, they would apply during the first year following termination of public service, that is, through July 10, 1999. Additionally, the restrictions would only apply as to your former governmental body which includes the House but not the Senate. With regard to monitoring legislative committee meetings, public hearings, and informational meetings, you may only engage in such conduct to the extent you are able to do so without representing your new employer before your former governmental body. For example, as a general rule, you would be permitted to attend meetings and hearings that would be open to the public. However, if your role would go beyond that of a general observer so that you would actually participate and /or advocate positions before the House of Representatives, not as a member of the general public but as a representative of your new employer, such representation would be prohibited. To the extent meetings would not be open to the public and you would be attending in your capacity with your new employer, such would constitute prohibited representation of your new employer before your former governmental body. With regard to your second and third specific inquiries, the proposed conduct would appear to involve lobbying. You are advised that lobbying Members of the House of Representatives during the first year following termination of public service would transgress Section 3(g). With regard to your fourth specific inquiry, although there is no per se prohibition against attending political fundraisers, while attending such functions, you may not engage in conduct which would constitute prohibited representation of your new employer before your former governmental body. Again, it is emphasized that the restrictions would only apply with regard to political fundraisers involving Members of the House of Representatives. Finally, with regard to having your name appear on APIP letterhead in routine correspondence to House Members, it is difficult to imagine how such could be done without transgressing Section 3(g). It seems certain that at least some such correspondence would constitute prohibited representation of your new employer, APIP, before your former governmental body, the House. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 3(g) 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 /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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. Keenan, 98 -591 September 10, 1998 Page 5 Conclusion: In the former capacity as Minority Executive Director of the House Consumer Affairs Committee, you would be considered a public official /public employee as defined in the Ethics Law. Upon termination of service with the House of Representatives, you became a former public official /public employee subject to Section 3(g) of the Ethics Law. The former governmental body is the House of Representatives. 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 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 § 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, - orko Vincent J. Do ko Chief Counsel