HomeMy WebLinkAbout84-021 PintoFrank A. Pinto, Director
Office of Legislature Information
Senate of Pennsylvania
Room 337, Main Capitol
Harrisburg, PA 17120
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
December 27, 1984
OPINION OF THE COMMISSION
Re: Legislative Agency, Executive Agency, Section 3(e)
Dear Mr. Pinto:
I. Issue:
84 -021
You ask what restrictions, if any, you face as an ex- employee of the
Office of Legislative Information, hereinafter, the Office, under the Ethics
Act.
II. Factual Basis for Determination:
We will assume that while serving with the Office you were considered a
"public employee" and that you were required to and did file a Statement of
Financial Interests under the Ethics Act as such. You state that you may be
considered for or secure employment with another agency within the executive
branch of the state government. The Office is within the legislative branch
of the state government.
You ask us to determine whether your potential employment with this
executive branch agency, hereinafter the Agency, would give rise to any
restrictions under Section 3(e) of the Ethics Act. You do not currently seek
our opinion or advice of the specific parameters of any restrictions of
Section 3(e) of the Ethics Act to your situation in relation to the extent of
any prohibited activity known as "representation." However, you ask that if
we conclude that, by this transfer, you become a "former public employee"
and /or that the Agency is a "person" as further discussed below, that you be
given an opportunity to present additional data to this Commission so that we
may then determine the "governmental body" with which you are associated while
serving with the Office.
Frank A. Pinto
December 27, 1984
Page 2
III. Applicable Law:
The law to be applied to this question is as follows:
Section 2. Definitions.
"Person." A business, individual, corporation, union,
association, firm, partnership, committee, club or other
organization or group of persons. 65 P.S. 402.
Section 3. Restricted activities.
(e) 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).
IV. Discussion:
It is clear that if you were a "public employee" while you are serving
with the Office that, when you terminate your relationship with the Office,
you would become a "former public employee" and may be subject to the
restrictions and obligations set forth in Section 3(e) of the Ethics Act.
Thus, when and if you terminate your relationship with the Office, the
restrictions set forth in Section 3(e) of the Ethics Act would normally arise
and prohibit you as a "former public employee" from representing any "person"
before the "governmental body" with which you have been associated for a one
- -year period following your termination of service with the Office.
Normally, we would analyze this question to discern the "governmental body"
with which you were associated while serving with the Office. Generally, this
question turns on an analysis of which bodies with which you served and where
you, as a public employee, had influence, responsibility, supervision or
control. See Ewing, 79 -010 and Kury v. State Ethics Commission, 435 A. 2d 940
(1981).
The main questions in this case, however, are whether by this employment
move from the Office to the Agency you became a "former public employee" or
whether the Agency, as your potential new employer, would be a "person" as
defined in the State Ethics Act which you would not be able to "represent" for
the one -year period following your termination of service with the Office.
Before proceeding to review these questions, however, we note that our prior
Opinions in Cohen, 79 -045 and Hunt, 84 -017 are not dispositive of these
questions. Inn Cohen, we dealtTh the question of whether the transfer of an
employee of one state agency within the executive branch of the state
government (Public Utility Commission) to another executive branch state
agency (the Office of Consumer Advocate) gave rise to restrictions under
Section 3(e) of the Ethics Act. We concluded that Section 3(e) of the Ethics
Frank A. Pinto
December 27, 1984
Page 3
Act did not restrict the activities of the employee transferred from one
agency within the same branch of state government because the person was still
a "public employee" and did not, by that transfer, become a "former public
employee." Here, we deal with a potential transfer between two different
branches of government and the result, accordingly, may not be the same as in
Cohen.
Likewise, in Hunt we decided that a federal level employee on loan to the
state -level agency Department of Environmental Resources, DER) became a
"former public employee" after leaving DER. However, we concluded that she
could respresent her federal employer before DER after she left DER to return
to federal service. This Opinion was based on the unique circumstances and
reasons supporting the loan or exchange program between the federal and state
governments under which the federal employee served with DER. As such and
because no similar program exists in this case, if we find you became a
"former public employee" by this transfer, we may have to address the question
of whether the Agency you would serve is or is not a "person" as defined in
the State Ethics Act and what, if any, restrictions you face under Section
3(e) of the Ethics Act in serving or "representing" the Agency within the
first year after you would leave the office.
If we conclude that you, by this transfer, became a "former public
employee" and that the Agency is a "person" to which the restrictions of
Section 3(e) would apply, we would, as set forth above, allow you the
opportunity to supply further information so that we could determine the
extent of the governmental body or bodies you may have been associated with
while serving with the Office. This analysis would be necessary in order to
discern the entities before which you could not represent the Agency as a
"person." Of course, if we rule that you do not, by this transfer, become a
"former public employee" or that the Agency is not a "person" then there would
be no restrictions under Section 3(e) as to your representation of the Agency
before any governmental body.
We will address the question of whether you became a "former public
employee" because of your proposed departure from the Office and employment by
the Agency first. We believe the Legislature sought, through Section 3(e) of
the Ethics Act, to address the possibility of conflicts between a potential
new employer and the governmental entity a public servant leaves. The "ills"
the Legislature sought to address by Section 3(e) of the Ethics Act -- the
potential that an ex- employee would use his past associations to benefit his
new employer to detriment of the public and the use of his post to favor a
potential employer -- do not change simply because the potential employer is
another governmental body. In Cohen, because the bodies were within the same
branch of government the potential for conflict before and after leaving one
entity within the same branch of government were reduced.
Frank A. Pinto
December 27, 1984
Page 4
Where, as here, the proposed transfer would be to an entity within
another branch of government, there is sufficient reason to apply Section 3(e)
to you. The practical basis for this ruling is the realization that an
executive branch agency is in "competition" with other agencies and entities
for the limited resources, revenues and attentions of the legislative branch,
in general. Your association with the Office, at least, would give you, and
through you, your potential employer (the Agency) an advantage in securing the
"attention" of the legislative branch or, at least, of the Office. The
restrictions of Section 3(e) of the Ethics Act are, therefore, appropriately
applied to you as a "former public employee."
Given this conclusion, that you would, by this departure from the Office
and employment by this Agency, become a "former public employee" we must
address the question of whether the Agency is .a "person" with respect to which
you (as a "former public employee ") would experience any restrictions.
In this analysis we must ask whether the Legislature could be said to
have intended to apply the same restrictions in this circumstance where your
post - office employer is another branch of state government as are clearly to
be applied where a government employee leaves government and joins a private
profit- making enterprise. The Legislature defined a "person" whom you would
not be able to represent for one year after leaving the Office with reference
to non - governmental entities, such as a business, a corporation, a union, etc.
We believe the Legislature intended to prohibit your activity or ability to
represent "persons" in circumstances most likely to occur and most likely
to give rise to a conflict, that is, where a government employee leaves and
enters the private sector. In such a situation, the former public employee's
ability to use his or her prior experience, influence, etc., with the agency
or office he served to the new (private sector) employer's financial advantage
is more apparent. Likewise, a prospective private sector employer, unlike
another governmental employer, might be able and motivated to attempt to
influence a public employee's judgment or conduct by the promise of future
employment with the private sector employer.
Thus, where your post - office employment is with another governmental
entity, the Agency, those concerns the Legislature sought to address by
Section 3(e) of the Ethics Act are allayed or reduced because the Agency
cannot be expected to seek to influence the Office or its employees in the
same manner as a non - governmental "person" or prospective employer would.
Therefore, the restrictions of Section 3(e) would not be applicable should
you, as an employee of the Agency, be required to represent the Agency before
the Office or the legislative branch of state government, in general.
Frank A. Pinto
December 27, 1984
Page 5
V. Conclusion:
Upon termination of your service with the Commonwealth you would become a
"former public employee," but for the reasons set forth above, Section 3(e)
does not restrict your ability to represent the Agency before the Office or
the legislative branch, generally.
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 reconside-
ration should present a detailed explanation setting forth the reasons why the
opinion requires reconsideration.
SSC /sfd
By the Commission,