HomeMy WebLinkAbout98-623 ManakosGeorge Manakos
Deputy Secretary for Administration
Department of State
Harrisburg, PA 17120 -0029
STATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
(717) 783 -1610
1- 800 - 932 -0936
ADVICE OF COUNSEL
December 14, 1998
98 -623
Re: Former Public Official /Public Employee; Section 3(g); Executive -Level State
Employee; Section 3(i); Deputy Secretary for Administration; Department of
State; Real Estate Bureau; Department of General Services.
Dear Mr. Manakos:
This responds to your letter of November 5, 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 the Deputy Secretary for Administration following
termination of service with the Department of State.
Facts: As Deputy Secretary for Administration for the Commonwealth of
Pennsylvania, Department of State, you request an advisory from the State Ethics
Commission.
You state that you assumed the position of Deputy Secretary for Administration
for the Department of State on or about January 1, 1998. Immediately prior to
assuming your current position, you were employed in the Real Estate Bureau of the
Commonwealth of Pennsylvania, Department of General Services ( "DGS "). The facts
which you have submitted do not indicate what specific position you held with DGS,
but for purposes of this Advice, it is assumed that in such position you were a public
official /public employee subject to the Ethics Law. You note that, prior to working for
the Commonwealth, you were in the business of real estate development and
management.
You have been offered and have accepted a position of employment with a
private company owned and operated by Mark Mendelson ( "Mendelson "), which
company does business with DGS. It is your intention to not be involved with the
contract which was previously awarded to Mendelson's company by DGS until after
January 6, 1999, when a full year will have elapsed from the date of your termination
of employment with DGS. You believe that, under these circumstances, your proposed
employment with Mendelson's company would be in compliance with the Ethics Law.
FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us
Manakos, 98 -623
December 14, 1998
Page 2
Based upon the above, you ask for an advisory from the State Ethics
Commission as to what restrictions would be placed upon you in your future employment.
Discussion: In your current capacity as the Deputy Secretary for Administration
for the Department of State, you would be considered a public official /public employee
and an "executive -level State 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 would become 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 -011 However, Section 3(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for Mendelson's company . and /or its client(s) 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 ":
Manakos, 98 -623
December 14, 1998
Page 3
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 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.
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, 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 /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
Manakos, 98 -623
December 14, 1998
Page 4
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 /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 will have been associated upon
termination of public service will include the Department of State in its entirety as well
as the Department of General Services ( "DGS ") in its entirety. Therefore, for the first
year after termination of your service with the Department of State, Section 3(g) of
the Ethics Law would apply and restrict "representation" of "persons" before the
Department of State. As for DGS, the facts which you have submitted indicate that
as of January 6, 1999, a full year will have elapsed since you terminated your
employment with DGS. Therefore, Section 3(g) of the Ethics Law would apply and
restrict "representation" of "persons" before DGS until January 6, 1999.
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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Upon termination of service with the Department of State, you
would become a former public official /public employee and a former executive -level
Manakos, 98 -623
December 14, 1998
Page 5
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 Mark Mendelson's company and /or its client(s), 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 would include the Department of State and the Department of
General Services. For the first year after termination of your service with the
Department of State, Section 3(g) of the Ethics Law would apply and restrict
"representation" of "persons" before the Department of State. Section 3(g) of the
Ethics Law would apply and restrict "representation" of "persons" before DGS until
January 6, 1999, when a full year will have elapsed since the termination of your
employment with DGS. 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 I. 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. D'opko
Chief Counsel