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HomeMy WebLinkAbout86-013 FaberMr: W. Russell Faber Greenlee Associates Suite 410 Ten South Market Square P.O. Box 291 Harrisburg, PA 17108 Dear Mr. Faber: I. Issue: II. Factual Basis for Determination: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION DEGIIlEt�E 1 1986 I AiLE[1 DES-2--1,99 6 86 -013 Re: Former Public Employee, Representation, Governmental Body, Definition This responds to your request for an opinion from the State Ethics Commission. Whether the term governmental body, as set forth in the one year representation restriction section of the State Ethics Act, was intended to apply to the organizational entity with which the employee was associated or to the specific individuals serving in that organization. On May 15, 1986, you resigned as the Chief Clerk of the Pennsylvania State Senate. On or about April 8, 1986, you contacted the State Ethics: Commission and requested, at that time, an advice or opinion regarding what, if any, restrictions would be imposed upon you in your new employment. On April 29, 1986, an Advice of Counsel, No. 86 -544, was issued to you generally outlining the restrictions set forth in Section 3(e) of the State Ethics Act, 65 P.S. §403(e). That Advice of Counsel indicated that the above cited provision of the State Ethics Act would restrict you from representing any individual before your former governmental body for a period of one year after you leave governmental service. It was further determined, in that Advice of Counsel, that your former governmental body was the Pennsylvania State Senate. Mr. W. Russell Faber Page 2 While you did not appeal or otherwise question the Advice of Counsel that was issued, you have more recently requested an interpretation from the State Ethics Commission regarding the term "governmental body." Specifically, on November 11, 1986, you forwarded a request to the State Ethics Commission seeking a determination as to whether the term governmental body, as used in the previously issued Advice of Counsel, was intended to include the State Senate as an organizational entity or whether it was limited to the specific individuals serving within the State Senate with whom you had a close working relationship. As part of your request you indicated that, as Chief Clerk in the State Senate, you had a working relationship with a specific list of individuals. Since your resignation, you submit that other individuals have been elected to the State Senate. You indicate that you have not had a working relationship with any of these individuals. As such, you have indicated your belief that the representation restrictions of the State Ethics Act should be limited solely to the individuals with whom you worked rather than the entity in its entirety. As part of our consideration of this issue, we have reviewed the responsibilities and duties that you performed in your position with the Pennsylvania State Senate. The Chief Clerk of the Pennsylvania State Senate is an officer of the Senate, who is the Chief Fiscal Officer thereof. In this capacity, you performed statutory duties which included the preparation of all payrolls and the pre -audit of all vouchers submitted for reimbursement or payment from any appropriation made to the Senate. Additionally, you were responsible for the day -to -day financial functions of the Senate and any related duties that would be assigned by the President Pro Tempore of the Senate or the Senate Committee on management operations. You were involved in maintaining central personnel files of all Senate employees. The following duties and responsibilities were also under the jurisdiction of your office: procurement, facilities management, chamber area personnel, cleaning personnel, storeroom and supplies operations, mailroom operations, and liaison for the Senate with the Department of General Services regarding the Capitol Extension Project. In addition to the foregoing, you served as the Secretary to the Committee on Management Operations. The Senate Committee on Management Operations is generally responsible for the preparation and adoption of rules and regulations regarding the personnel policies and procedures in the Pennsylvania State Senate. III. Discussion: The issue, which has been presented herein, is one which has not heretofore been addressed by this Commission. As previously noted, the State Ethics Act provides as follows: 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). Mr. W. Russell Faber Page 3 The Act further provides as follows: Section 2. Definitions. "Governmental body." Any department, authority, commission, committee, council, hoard, 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. In the instant situation, we have been called upon to interpret the provisions of the State Ethics Act regarding the issue of whether the term governmental body was intended to apply to organizational entities in their entirety or whether the term was intended to apply only to individuals serving in such entities. At the outset, it should be noted that an administrative agency, indeed, has the power to interpret the provisions of its own enabling legislation and that such interpretations, and the future applications of such interpretations, are to be accorded substantial weight. Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 410 A.2d 731, (1980); Carol Lines Incorporated v. Pennsylvania Public Utility Commission, 83 Pa. Commw. Ct. 393, 477 A.2d 601, (1984). In making a statutory interpretation in accordance with the above authority, we, of course, must rely primarily upon any judicial decisions relating to the issues presented herein as well as the Pennsylvania Rules of Statutory Construction. 1 Pa. C.S.A. §1901 et. seq. In an attempt to construe the meaning of particular statutory provisions, legislative intent must control. 1 Pa. C.S.A. §1921(a). Pursuant to the provisions of the Pennsylvania Statutory Construction Act, when the words of a statute are clear and free from all ambiguity, there is no doubt as to how they are to be construed. In the instant matter, it clearly appears as though the term "governmental body" is specifically defined as an organizational structure rather than as the individual components of that structure. In this respect, we note that the Pennsylvania State Ethics Act also contains a specifiic definition of the word person. That definition 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. Mr. W. Russell Faber Page 4 Had the General Assembly of Pennsylvania intended that the Section 3(e) restrictions apply to individuals rather than to organizational entities, then the General Assembly could have simply inserted the term person in place of the term governmental body in that section of the Act. This, however, was not done by the General Assembly and, as such, it appears as though the clear intent of the General Assembly, in using the term governmental body in Section 3(e) of the State Ethics Act, was to restrict the former governmental employee from appearing before the organization by which he was employed. Assuming arguendo, however, that the words of the statute are not explicit, then the intention of the General Assembly may be ascertained by considering among other things: 1. The occasion and necessity for the statute. 2. The circumstances under which it was enacted. 3. The mischief to be remedied. 4. The object to be obtained. 5. The former law. 6. The consequences of a particular interpretation. 7. Contemporaneous legislative history. 8. Legislative and administrative interpretations of such statute. 1 Pa. C.S.A. §1921 Initially, it should be noted that this Commission, in accordance with the aforementioned authority to interpret its own enabling legislation, has generally indicated that the phrase governmental body, as used in the provisions of the Section 3(e) of the State Ethics Act, was intended to include that area where the individual has had influence, control, responsibility and jurisdiction. See, Rocuskie, 86 -010; Larson, 86 -009; Buffington, 86 -008. These administrative interpretations of the State Ethics Act, must be considered in our review of the instant issue and are to be accorded substantial weight in such consideration. Generally, the occasion for the promulgation of the State Ethics Act and the mischief which was intended to be remedied are clear. In this respect, the General Assembly of Pennsylvania enumerated the intent and purpose in the preamble of the law which provides: Mr. W. Russell Faber Page 5 Section 1. Purpose. The Legislature hereby declares that public office is a public trust and that any effort to realize personal financial gain through public office other than compensation provided by law is a violation of that trust. In order to strengthen the faith and confidence of the people of the State in their government, the Legislature further declares that the people have a right to be assured that the financial interests of holders of or candidates for public office present neither a conflict nor the appearance of a conflict with the public trust. Because public confidence in government can best be sustained by assuring the people of the impartiality and honesty of public officials, this act shall be liberally construed to promote complete disclosure. 65 P.S. 401. The provisions of §403(e) of the Act were intended to prevent public officials from trading on their service to the Commonwealth and obtaining a financial gain or benefit because of such service. This particular section of the law deals with what was perceived to be the problem of state officials and employees leaving public employment to work in the private sector and then using confidential information or their association with their former governmental body for the advantage of their private employers, customers or clients. See, Conflict of Interest, Financial Disclosure a Model State Law, National Municipal League, (1979). The above provision of law has been more commonly referred to as the "revolving door" principle. Considering these particular factors and particularly the intended purpose of this provision of law, it is clear that the General Assembly of Pennsylvania could not have intended an interpretation of the law that merely limited a former public employee in dealing with certain individuals. Clearly, that interpretation of the law would not address the issue of the use of confidential information that is obtained during the course of public employment and which could be used after that individual employee's termination of service. Additionally, it is clear that a former governmental employee, while only dealing closely with specific individuals in a governmental body could, nevertheless, have had influence, jurisdiction, control and responsibility for an area much larger than the specific individuals with whom he was closely associated or through whom he executed that authority, responsibility and control. Clearly, an interpretation of the State Ethics Act, of the type herein requested, would miss the mark insofar as forwarding and advancing the legislative intent. This is particularly so in reviewing your duties and responsibilities as Chief Clerk for the State Senate. You were responsible for major areas of the State Senate's Operation and, in this respect, you exercised influence throughout the State Senate and your actions obviously affected not only all of the members of the State Senate but all of the employees of that governmental body. As set forth in the previous Advice of Mr. W. Russell Faber Page 6 Counsel, you were responsible for the day -to -day financial functions of the Senate. You were responsible for major areas of operation, including procurement and supplies. You also served as the Secretary to the Committee on Managment Operations which was generally responsible for the preparation and adoption of rules and regulations regarding the personnel policies and procedures in the Senate. While you may have only worked specifically with certain individuals at a higher level of operations of the Senate, your jurisdiction, influence, and responsibilities were exercised throughout the Senate. We also must note, that while you have indicated that a number of individuals with whom you were closely associated are no longer serving in the Pennsylvania State Senate, there are still a number of individuals serving both as State Senators and in the underlying structure of the State Senate. While there is a paucity of judicial precedent on this issue, we believe that the extant case law supports the position that we are herein advocating. To date,`only one case has been litigated regarding the interpretation of Section 3(e) of the State Ethics Act. In Kury v. State Ethics Commission, 62 Pa. Comm. Ct. 174, 435 A.2d 940, (1981) the Commission, in applying Section 3(e) to Senator Franklin L. Kury, who had retired from the Pennsylvania State Senate, ruled that his governmental body not only included the State Senate but also the Public Utility Commission. The Commission ruled this way in light of the fact that Senator Kury had been the chairperson of the Consumer Affairs Committee of the State Senate. This committee dealt routinely with the Public Utility Commission. In overruling the Commission's broad interpretation of the term governmental body, the Commonwealth Court of Pennsylvania in Section 3(e) of the State Ethics Act concluded that the bar is effective for one year after the former official retires from the "body" with which he was associated. The Commonwealth Court did not conclude that such term was dependent upon the individuals specifically serving that body but was rather inclusive of the organizational entity itself. In making this decision, the Commonwealth Court of Pennsylvania noted that if they were to hold otherwise "it would mean that every committee chairperson would be bound to keep a running tabulation of every commission, bureau, authority, agency or consumer, that it had contact with." It would then be up to the State Ethics Commission to decide whether the regularity and extent of that contact was sufficient to conclude that the committee chairperson was associated with such person or body. This result would be absurd in nature concluded the court. The exact type of "running tabulation," noted above, is similar to that which would be required under your interpretation. From a practical standpoint, this Commission would be required to keep a running tab of the changing officials in the Commonwealth of Pennsylvania. This would now have to become one of the factors in determining whether an individual could appear before his former governmental body. We also would have to determine whether the nature and extent of such contact was sufficient to warrant the restrictions. The consequences of this particular interpretation would be the creation of substantial confusion and the issuance of potentially inconsistent opinions. Mr. W. Russell Faber Page 7 Finally, we believe that our interpretation of the State Ethics Act, in this respect, coincides with one of the presumed intentions of all statutory enactments, that is, the General Assembly intends to favor the public interest as against any private interest. 1 Pa. C.S.A. §1922(5). In this respect, we believe that our interpretation of this issue does, indeed, advance the public interest over that of any private interest. We do note, herein, that there will be situations where an employee's governmental body may be limited to a specific individual. For example, we have issued rulings, in the past, that have specifically determined that the governmental body of a research assistant would be the office of the legislator that the research assistant worked for. This, however, was once again based upon the influence, responsibility, jurisdiction and control of that employee and the restriction was applied on an organizational level, i.e. to the "office" of that particular leglislator. In this respect, we believe that our current opinion is consistent with those prior opinions. See, Buffington, 86 -008. IV. Conclusion: The term governmental body, as used in §403(e) of the State Ethics Act, applies to the organizational entity with which the former public employee or official was associated rather than the particular individuals who served in that organizational entity. The nature and extent of a particular organizational entity is to be determined by the influence, responsibility, jurisdiction or control exercised by the employee or official while serving in the public sector. 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. By the Commission, Z. rtQ. . b)a- wr.0rw47t G. Sieber Pancoast Chairman