HomeMy WebLinkAbout83-007 JapakWalter F. Japak
Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17120
Re: Governmental body, Representation
Dear Mr. Japak:
I. Issue:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
May 26, 1983
OPINION OF THE COMMISSION
83 -007
You ask what the proper interpretation of the "governmental body
with which he has been associated" is in light of your position with the
Public Utility Commission (P.U.C.) as_ outlined below.
II. Factual Basis for Determination:
You indicate that you are currently classified as a Rate Case Review
Specialist at the P.U.C., The P.U.C. is composed of five members and by
statute and /or practice the majority of the members sitting on the Commission
is required for any action, including final orders, ratification of emergency
orders, personnel matters and any expenditure of funds. No one Commissioner,
except in an emergency order situation, may undertake action of the
Commission.
However, each Commissioner maintains his own personal staff. You
provided an organizational chart which indicates your direct and immediate
supervisor was P.U.C. Commissioner Clifford L. Jones. You serve as a Rate
Case Review Specialist for Commissioner Clifford L. Jones. In this capacity,
you review the cases pending before the Commission and provide Commissioner
Jones with a detailed analysis of particular components of a case and a
recommendation as to appropriate action for him to take on a case. Your
expertise in this area is one of a technical nature reviewing the financial,
economic, engineering, and accounting factors in each case. Upon such review
you provide Commissioner Jones with your opinion regarding the comments that
may have been filed and the various arguments of the parties to a case. In
this process you review decisions of administrative law judges, exceptions
filed by the parties, briefs and reply briefs of the parties and transcripts
of Commission proceedings.
Walter F. Japak
May 26, 1983
Page 2
You indicate that the opinions you provide and the analysis you make are
utilized only by Commissioner Jones and that you have no direct input in the
decision- making proses: of other Commissioners and /or their staffs. The
offices of each Commissioner are independent of each other and each staff of
each Commissioner advises only that particular Commissioner whom they serve.
Further, you indicate that by virtue of the Public. Utility Code, 66 Pa. C.S.A.
334, you are precluded from having any discussions whatsoever with any
Commission employee or other person, cther than Commission advisory.staff,
regarding a contested, on- the - record proceeding before the Commission.
Finally, it should be noted that Commission staff members are non -civil
service employees who work only for one Commissioner. Thus, when one
particular Commissioner resigns, his personal staff members are not retained
by the Commission unless those persons are rehired in other areas of the
Commission or by another Commissioner.
You indicate that upon leaving the P.U.C. you would seek to offer your
services as an analyst /expert to parties /intervenors who participate in rate
or other cases presented to the P.U.C. for ruling. In such a capacity you
would testify before an Administrative Law Judge (ALJ) who then typically
makes a recommended decision to be cons4dered by the P.U.C. The expert
testimony you might offer would include a recitation that you had
experience with the P.U.G. as a member of Commissioner Jones' staff. The
decisions of the P.U.C. are based upon the record made before the ALJ, legal
arguments and briefs based thereon.
II1. Applicable Law:
The law to be applied to this matter is as follows:
Section 3. Restricted Activities
te) No former official or public employee shall represent
a person, with or without 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(e).
Section 2. Definition of Public Employee
"Public employee." Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
Walter F. Japak
May 26, 1983
Page 3
(1) contracting or procurement;
(2) administering or monitoring grants or
subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing
any person; or
(5) any other activity where the official action
has an economic impact of greater than a de
minimus nature on the interests of any person.
"Public employee" shall not include individuals who are
employed by the State or any political subdivision thereof
in teaching as distinguished from administrative duties.
65 P.S. 402.
Regulations of the State Ethics Commission which define "public
employee ":
Public employee ---
0) The term includes any individual:
(A) who is employed by the Commonwealth or a political
subdivision and who is responsible for taking or
recommending official action of a nonministerial nature
with regard to:
(I) contracting or procurement;
(II) administering or monitoring grants or subsidies;
(III) planning or zoning;
(IV) inspecting, licensing, regulating, or auditing any
person; or
(V) any other activity where the official action has
greater than a de minimis economic impact; and
(B) who meets the criteria of either subclause (I) or
(II) of this clause:
(I) The individual is:
( -a -) a person who normally performs his
responsibility in the field without on -site supervision;
Walter F. Japak
May 26, 1983
Page 4
( -b -) the immediate supervisor of a person who
normally performs his responsibility in the field without
on -site supervision; or
( -c -) the supervisor of any highest level field
office.
(II) The individual is a person:
( -a -) who:
( -1 -) has the authority to make final decisions;
( -2 -) has the authority to forward or stop.
recommendations from being sent to the person or body with
the authority to make final decisions;
( -3..) prepares or supervises the preparation of
final recommendations; or
and
( -4 -) makes the final technical recommendations;
( -b -) whose recommendations or actions:
(-I-) are an inherent and recurring part of his
position; and
( -2 -) affect organizations other than his own
organization. 51 Pa. Code 1.1.
Section 2. Definition of Governmental Body
"Governmental body.' Any department, authority,
commission, committee, council, board, bureau, division,
service, office, officer, administration, legislative
body, or other establishment in the Executive, Legislative
or Judicial Branch of the State or a political subdivision
thereof. 65 P.S. 402.
Walter F. Japak
May 26, 1983
Page 5
IV. Discussion:
Given the definition of "public employee" as outlined above, it must be
concluded that you, as a Rate Case Review Specialist, were responsible for
recommending official action, with regard to categories (4) and (5) in the
definition of public employee. As such, upon your proposed (we assume)
termination of employment with the Public Utility Commission, you will become
a "former public employee" subject to the provisions of Section 3(e) of the
Ethics Act.
In this respect, two questions arise: (1) What is the extent of the
"governmental body" with which you have been" associated" while working at the
P.U.C. on Commissioner Jones' staff; and (2) What activities would be
prohibited as "representation ".
Notably, "governmental body" as defined in the Ethics Act may be broad or
narrow. See Section 2. Typically, this Commission has found an individual's
"governmental body" to be as broad or as narrow as that entity where
he /she had authority, influence, discretion, responsibility or power during
his /her tenure in public service. See Adler, 79 -043; Beaser, 79 -060, Pedone,
79 -062; Mete, 79 -049. Thus, in your situation we must, similarly, consider
the extent to which you had authority, influence, discretion, responsibility
and power in order to define the parameters of the "governmental body" with
which you were associated.
We must recall the normal and ordinary meaning of these terms as well.
There is little doubt that the public will view you as a former employee of
the P.U.C. and will not be so refined as to recognize your assignment to the
Office of Commissioner Jones which might limit the "governmental body" with
which you were associated to some field smaller than the entire P.U.C. There
is little doubt that appearing as an expert within the first year after you
depart the P.U.C. as you propose would be perceived as a violation of Section
3(e) of the Ethics Act.
We also conclude that the extent of your "governmental body" is
appropriately defined as the P.U.C. itself rather than simply the Office of
Commissioner Jones because that Office, for all intents and purposes, will
cease to exist when Commissioner Jones leaves the P.U.C. Finally, most
significant is our review of the role you played while employed by the P.U.C.
As the personal staff /expert of Commissioner Jones you made recommendations to
him within the definition of "public employee ". We also believe that your
duties fall within our regulations 51 Pa. Code (B) (II) (a) and (b) set forth
above. You clearly had input and responsibility sufficient to stop or forward
recommendations from being sent to the'hody (P.U.C.) with the
Walter F. Japak
May 26, 1983
Page 6
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authority to make final decisions. Your influence and responsibility,
therefore, extended beyond the immediate 0fficn of one Commissioner and is
sufficiently apparent to allow the conclusion that the governmental body with
which you were associated was the P.U.C.
Having found that your governmental body is the P.U.C., we need to
outline the scope of the concept "representation ". in prior decisions the
Commission has indicated that 3(e) and the concept of "representation"
would:
1. Prohibit personal appearances before the governmental body with which the
former public employee was associated for the one year period outlined in
Section 3(e).
2. Prohibit attempts by the former public employee to influence the
governmental body with which he was associated.
3. Prohibit a former employee from participating before that governmental
body with which you were associated in any case over which you had
supervision, direct involvement, or responsibility while with the
governmental body before the one year period expires,
4. Not bar members of a former public employee's or official's firm or
new employer from representing clients before tha governmental body with
which the former public employee /official was associated. See Berger,
79 -060.
Not prohibit the former public employee or official from making
general informational inquiries of the governmental body with which he was
associated upon matters subject to inquiry by the general public. Cavill,
79 -041.
6. Not bar the former public employee from generally utilizing the knowledge
and expertise gained from his or her tenure as a public employee except as
set forth above.
V. Conclusion:
As a former public employee you are subject to the requirements of
Section 3(e) of the Ethics Act and must, within the first year after your
employment, be precluded from representing any person with or without
compensation before the governmental body with which you were associated, in
this case, the Public Utility Commission. Your conduct within the first year
in relation to "representation" must conform to the requirements of this
Opinion.
Walter F. Japak
May 26, 1983
Page 7
SSC /na
cc: Linda Taliaferro, Chairman
Public Utility Commission
•
Pursuant to Section 7(9)(i), this opinion is a complete defense in any
enforcement proceeding initiated by the Commission, and evidence of good faith
conduct in any civil or criminal proceeding, providing the requestor has
disclosed truthfully all the material facts and committed the acts complained
of in reliance of the advice given.
This letter is a public record and will be made available as such.
Finally, any person may request within 15 days of service of the opinion
that the Commission reconsider its opinion. The person requesting
reconsideration should present a detailed explanation setting forth the
reasons why the opinion requires reconsideration.
By the Commission,