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Home My WebLink About99-501 KrebsPatricia Carone Krebs RD 3, Box 622 Palmyra, PA 17078 Re: Former Public official; Section 1103(g); Member; House of Representatives; Common Cause; House Rules. Dear Ms. Krebs: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 (717) 783 -1610 1- 800 - 932 -0936 ADVICE OF COUNSEL January 5, 1999 99 -501 This responds to your letter of December 15, 1998 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act presents any restrictions upon employment of a Member of the Pennsylvania House of Representatives following termination of service with the Commonwealth. Facts: You have served as a Member of the Pennsylvania House of Representatives. Your term of office ended on November 30, 1998. As a Representative, you used the surname of "Carone," but have now assumed your husband's surname of "Krebs." In a private capacity, you have become a member of Common Cause and desire to volunteer in efforts to change the House Rules and the manner in which the House operates. You have studied the operations of houses of representatives in other states such as Florida and Ohio, and would like to be able to share information regarding their rules and operations with the Pennsylvania House. You would also like to ask House Members to consider several constitutional changes. You state that at this time you are not discussing these issues with House Members. You ask for an advisory from the State Ethics Commission as to limitations which would be placed on your future "dialogue" with members of the House. Specifically, you ask if you may have any conversations with House Members regarding House Rules. Discussion: In the former capacity as a Member of the Pennsylvania House of Representatives, you would be considered a "public official" subject to the Public Official and Employee Ethics Act ( "Ethics Act ") and the Regulations of the State Ethics Commission. See, Act 93 of 1998, Chapter 11; 51 Pa.Code §11.1. Consequently, upon termination of public service, you became a "former public official" subject to Section 1103(g) of the Ethics Act. FAX : (717) 787 -0806 • Web Site: www.ethics.state.pa.us • e -mail: sec@state.pa.us Krebs, 98 -145 January 5, 1999 Page 2 While Section 1103(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 1103. Restricted activities. (g) Former official or employee. - -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. Act 93 of 1998, Chapter 11, §1103(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 Act as follows: Section 1102. 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. Act 93 of 1998, Chapter 1 1, §1102. 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. Krebs, 98 -145 January 5, 1999 Page 3 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 1103(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 Act 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 1 103(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 were associated upon termination of public service is the House of Representatives in its entirety. Therefore, for the first year after termination of you service with the House of Representatives, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the House of Representatives. As to the clarification which you seek concerning what permissible contact you may have with members of the Pennsylvania House of Representatives, it is clear under the definition in the Ethics Act that such activity would constitute representation. However, such representation would not be prohibited by Section 1 103(g) provided you do not obtain promised or actual compensation for such activity. In this regard you have stated that you will be acting on behalf of Common Cause as a volunteer /member. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1 103(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 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1 103(c) of the Ethics Act 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 Krebs, 98 -145 January 5, 1999 Page 4 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 Act; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Act. Specifically not considered is the Governor's Code of Conduct. Conclusion: In the former capacity as a Member of the Pennsylvania House of Representatives, you would be considered a "public official" as defined in the Public Official and Employee Ethics Act ( "Ethics Act "), Act 93 of 1998, Chapter 11. Upon termination of service with House of Representatives, you became a "former public official" subject to Section 1103(g) of the Ethics Act. 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 Act. Further, should service be terminated, as outlined above, the Ethics Act 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 1107(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. erely, Vincent J. opko Chief Counsel