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HomeMy WebLinkAbout85-022 SeidelDear Mr. Seidel: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 23, 1985 OPINION OF THE COMMISSION Mr. George H. Seidel, Jr. 110 Valleyview Road New Cumberland, PA 17070 RE: Former Public Official; Section 3(e), Secretary for Legislative Affairs, Office of the Governor 85 -022 This responds to your letter of October 7, 1985, in which you requested the opinion of the State Ethics Commission. You ask whether the Ethics Act presents any restrictions upon your potential employment following your termination of service with the Office of the Governor. II. Factual Bassis for Determination: You have recently terminated employment with the Commonwealth of Pennsylvania and you now seek the opinion of the State Ethics Commission regarding restrictions upon your future activities. During your Commonwealth service, you were employed by the Office of the Governor as Secretary for Legislative Affairs. This is a cabinet -level position in the Office of the Governor. In this position you were generally responsible for the oversight and preparation of bill analyses that were sent to the Governor's desk. You were responsible for reviewing the background material prepared by members of staff as well as for recommending the action to be taken on each bill. You, generally, coordinated the activities of the legislative liaisons of the executive branch agencies under the jurisdiction of the Governor's Office. You were responsible for arranging for responses from the Governor or other appropriate executive branch officials to written or verbal communications received from the Genera's Assembly. You also arranged for meetings between the Governor and legislative leaders as necessary. You coordinated your activities with the Governor's Secretary of Policy and Planning and other staff members in preparing the Administration's Legislative Program. You were responsible for requesting and Mr. George H. Seidel, Jr. October 23, 1985 Page 2 assisting in making arrangements with the Governor to appear before joint sessions of the General Assembly to present the proposed Commonwealth budget, as well as for other appearances before that body. You have recently ohtained employment as the Executive Director of a national trade association and have requested the opinion of the Ethics Commission on any restrictions that might be applicable to you in your new position. III. Discussion: At the outset, it must be noted that the Ethics Commission may only address your question within the purview of the Ethics Act. The Commission may not and will not offer advice with respect to any duties or obligations that may be imposed by other provisions of law such as the State Adverse Interest Act or the Governor's Code of Conduct. As a Secretary for Legislative Affairs, the Office of the Governor, you were to be considered a "public official" within the definition of that term as set forth in the Ethics Act and the regulations of the Commission. 65 P.S. §402; 51 Pa. Code §1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly that you had the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. See Muir, 85 -078; Pierce, 85 -536; Weber, 83 -604. Consequently, upon termination of this employment, you became a "former public official" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: 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. Initially, to answer your request, we must identify the "governmental body" with which you were associated while working with the Office of the Governor. Then, we must review the scope of the prohibitions associated with the concept and term of "representation." In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public Mr. George H. Seidel, Jr. October 23, 1985 Page 3 office or employment extends to those entities where he had influence, responsibility, supervision, or control. See Ewing, 79 -010. See also Kury vs. Commonwealth of Pennsylvania, State Ethics Commission, 435 A.2d 940 (1981). From the description and analysis of your duties and responsibilities and based upon the facts outlined above, your jurisdiction, responsibility, influence and control appears to have been exercised within the Governor's Office in general and the executive agencies thereunder. This is so especially in light of the fact that as a senior staff official in the Governor's Office, you were responsible for coordinating the activities of legislative matters on behalf of the administration and because your job description, references to your activity in relation to coordinating the legislative activities of executive agencies under the Governor's jurisdiction. Thus, the "governmental body" with which you have been "associated" would be the Office of the Governor and the executive agencies thereunder. Additionally, we note that you were responsible for various activities outside of the Office of the Governor. In this respect, you were responsible for acting as a liaison between the Governor's Office and the General Assembly. We do not, however, believe that this factor empowered you with any responsibility or control over that body. See; Kury v. State Ethics Commission, supra. Therefore, you are not deemed to have been associated with the General Assembly. Within the first year after you would leave Commonwealth service, Section 3(e) of the Ethics Act would apply and restrict your "representation" of persons or new employers vis -a -vis the Office of the Governor and the executive agencies thereunder, hereinafter, the Office and the Agencies. The Ethics Act would not affect your ability to appear before agencies or entities other than with respect to the Office and the Agencies . Likewise, there is no general limitation on the type of employment in which you may engage, following your departure from Commonwealth service. We do note, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former public employer. See Anderson, 83 -014; Zwikl, 85 -004. In respect to the one year representation restriction the Ethics Commission has promulgated regulations to define "representation" as follows: Section 1.1. Definitions. Representation - -- Any act on behalf of any person - including but not limited to the following activities: Mr. George H. Seidel, Jr. October 23, 1985 Page 4 personal appearances, negotiating contracts, lobbying, and submitting bid or contract proposals which are signed by or contain the name of the former public official or public employe. 51 Pa. Code 1.1. The Commission, in its opinions, has also interpreted the term "representation" as used in Section 3(e) of the Ethics Act to prohibit: 1. Personal appearances before the governmental body or bodies with which you have been associated, (that is the Office and the Agencies, including, but not limited to, negotiations or renegotiations on contracts with the Office and the Agencies; 2. Attempts to influence Office and the Agencies; 3. Participating in any matters before the Office and the Agencies over which you had supervision, direct involvement, or responsibility while employed by the Commonwealth; 4. Lobbying, that is representing the interests of any person or employer before the Office and the Agencies in relation to legislation, regulations, etc. See Russell, 80 -048 and Seltzer, 80 -044. The Commission, has also held that preparing and signing a proposal, document or bid, or listing your name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the Office and the Agencies, constitutes an attempt to influence your former governmental body. See Kilareski, 80 -054. Therefore, within the first year after you leave the Commonwealth, you should not engage in the type of activity outlined above. You may assist in the preparation of any documents presented to the Office and the Agencies so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before the Office and the Agencies. Once again, however, your activity in this respect should not be revealed to the Office and the Agencies. Of course, any ban under the Ethics Act would not prohibit or preclude you from making general informational inquiries of the Office and the Agencies to secure information which is available to the general public. See Cutt, 79 -023. This, of course, must not be done in an effort to indirectly influence these entities or to otherwise make known to the the Office and the Agencies your representation of or work for your new employer. Finally, the Commission has concluded that if you are administering an existing contract as opposed to negotiating or renegotiating a contract, your activities would not be prohibited by the Ethics Act. See Dalton,. 80 -056 and Beaser, 81 -538. tir. George H. Seidel, Jr. October 23, 1985 Page 5 In addition to the foregoing, and in order to be complete, you should also be aware of the special provisions of the Ethics Act relating to executive -level employees. In this respect the Act provides that: Section 3. Restricted activities. (g) 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. 65 P.S. 403(g). Executive -level State employee is defined as: Section 2. Definitions. "Executive -level State employee." The Governor, Lieutenant Governor, cabinet members, deputy secretaries, the Governor's office staff, any State employee with discretionary powers which may affect the outcome of a State agency's decision in relation to a private corporation or business or any employee who by virtue of his job function could influence the outcome of such a decision. 65 P.S. 402. You, as Secretary for Legislative Affairs in the Governor's Office, are clearly within this definition. Thus, if you have to any extent participated in recruiting your new employer to initiate operations, open a new plant facility or branch in the Commonwealth and Commonwealth funds were employed as an inducement, therfore, you would be prohibited for a period of two years from the date of your termination from being employed by that entity. Mr. George H. Seidel, Jr. October 23, 1985 Page 6 IV. Conclusion: As a Secretary for Legislative Affairs, you are to be considered a "public official" as defined in the Ethics Act. Upon termination of your service with the Commonwealth, you became a "former public official" subject to the restrictions imposed by Section 3(e) of the Ethics Act. As such, your conduct should conform to the requirements of the Ethics Act as outlined above. Your governmental body for the purpose of the one—year representation restriction is the Office of the Governor and all Executive Agencies thereunder. 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. JJC /sfb By the Com ission, HER,: RT B. CONNER Chai rman