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HomeMy WebLinkAbout90-009-R SharpMr. Jeffrey D. Sharp 90 -009 -R 1129 Baish Road Mechanicsburg, PA 17055 Re: Former Public Employee, Governmental Body with Which a Public Official or Public Employee Is or Has Been Associated, Senate, Legislative Assistant to Senator, Section 3(g), Reconsideration. Dear Mr. Sharp: This responds to your letter dated May 16, 1990 requesting reconsideration of Sharp, Opinion 90 -009. I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley Daneen E. Reese DATE DECIDED: August 16, 1990 DATE MAILED: August 24, 1990 Whether Sharp, Opinion 90 -009, issued on May 3, 1990, should be reconsidered and, if so, whether a former legislative assistant to a Pennsylvania Senator was a "public employee" and thus restricted under Section 3(g) of the Public Official and Employee Ethics Law from representing a person before the Pennsylvania Senate for a period of one year after termination of service. II. Factual Basis for Determination: The instant matter arose from your request for advice dated January 12, 1990, regarding possible restrictions on your employment following termination of service - with the Pennsylvania Senate. Advice of Counsel Number 90 -514 was issued on March 5, 1990. By letter of March 19, 1990 you appealed the above advice which determined that as a legislative assistant to State Senator Earl Baker you were a public employee and thus restricted from representing any person or new employer vis -a -vis the Senate for a period of one year after termination of service. You were advised by letter of March 20, 1990, that your appeal would be reviewed subsequently by this Commission at a public meeting on March 30, 1990 wherein you had the right to appear to present any Mr. Jeffrey D. Sharp Page 2 briefs, memoranda or argument relevant to the issue. You did in fact appear and make a presentation at that meeting as well as at the public meeting of August 16, 1990. At the March 30, 1990 public meeting, the State Ethics Commission reviewed the issue and determined that you as a former legislative assistant to a Pennsylvania Senator were a public employee restricted under Section 3(g) of the Public Official and Employee Ethics Law from representing a person before the Pennsylvania Senate for a period of one year after termination of service. The Commission's decision was finalized in a written Opinion 90 -009 issued on May 3, 1990. On May 17, 1990, this Commission received your letter requesting reconsideration of Opinion 90 -009 wherein you argue as follows: 1. A legislative assistant is not a "public employee" as defined in the Ethics Act: a. A legislative assistant is not in a position to take official action; b. Your position under the definition in the Ethics Act does not differ from that in Harbach, Advice 90 -528, and therefore, should carry a like conclusion; c. That the Commission may only construe as narrowly, or broadly, as the statutory language permits. 2. If it be determined that a legislative assistant is a "public employee," any restriction on representation should be limited to Senator Baker and his staff. It is also noted that on April 17, 1990 the State Ethics Commission received a request for reconsideration filed by the General Counsel to the Senate Majority Caucus and the Chief Counsel to the Senate Democratic Floor Leader (hereinafter Counsel). Thereafter, Counsel filed a second letter dated August 9, 1990, setting forth their arguments as to why reconsideration should be granted on this matter. Counsel argue that the language of Section 3(g) in the amended Ethics Law is virtually the same as that found in that Section of the Ethics Act, Act 170 of 1978. They maintain that since the language remained relatively identical from one Act to the other and because Act 9 was a reenactment of Act 170 and not a completely new enactment, cases decided under the previous Act should be given precedential weight. Counsel also argue that "public officials or public employees who leave public service are not 'evil' emissaries seeking to accrue Mr. Jeffrey D. Sharp Page 3 improper gain" and as such their future employment endeavors should not be unduly restricted. Additionally, they assert that such was not the legislative intent of the General Assembly as evidenced by the "Purpose" provision of Act 9; the General Assembly sought to eliminate specific conflicts with the public trust. To show such legislative intent, Counsel also note that the definition of "governmental body" did not change from Act 170 to Act 9 with respect to the purposes at hand. They argue that the addition of the definition "governmental body with which a public official or public employee is or has been associated" to Act 9 of 1989, without a change in the restricted activity, "does not constitute a blanket, wholesale prohibition regarding the former governmental body...." With respect to this issue they assert that under the "parallel status accorded administrative and judicial interpretations" the decisions announced in Northeastern Building Registered v. Commonwealth, 41 Pa. Commw. Ct. 389, 399 A.2d 449 (1979), (Determined that if legislature does not like an interpretation applied to a term over the years, it will amend it), and Commonwealth v. Sitkin's Junk Company, 412 Pa. 132, 194 A.2d 199 (1963) (Same language used in later statute is to have same interpretation), mandate the determination that the General Assembly's rejection of the term "entity" while retaining the term "governmental body" illustrates the legislative intent to retain this Commission's interpretation of "governmental body with which a public official or public employee is or has been associated." The second main argument which Counsel set forth is that we somehow see the two definitions as irreconcilable. They argue that under the Statutory Construction Act the terms "governmental body with which a public official or public employee is or has been associated and "governmental body" are to be "read together in a manner that gives effect to both of them." In the alternative, they maintain that the term "governmental body" is controlling, which would lead then to the ultimate conclusion that Senator Baker's office and not the whole Senate is the former governmental body. They also state their disagreement with this Commission's application of House Judiciary Committee's 1987 Sunset report and the House Floor Debate of February 15, 1989. Additionally, they maintain that in order to best address the "revolving- door" issue, the Commission should concentrate on an individual's area of influence balanced against the need for restrictions. They state further that the Senate, by amending the definition of "governmental body with which... ", was providing the Commission with "latitude and flexibility." Finally, they assert that the General Assembly's rejection of "entity" and subsequent use of "governmental body" indicates their intent to reject the "expansive approach first accepted by the House." Mr. Jeffrey D. Sharp Page 4 Counsel appeared and presented argument on the above points at the August 16, 1990 public meeting of this Commission. III. Discussion: We have been asked to reconsider Sharp, Opinion 90 -009 by Mr. Sharp and Counsel. First, it must be recognized that this Commission may exercise broad discretion in determining whether to grant or deny reconsideration, as long as such discretion is exercised in a sound manner. Krane, Opinion 84- 001 -R; PSATS v. State Ethics Commission, 92 Pa. Commw. Ct. 544, 499 A.2d 735 (1985). The general law to be applied to this question is as follows: 52.15. Reconsideration of opinions. 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. 51 Pa. Code 52.15. Pursuant to the above regulation, the timely request and the submissions in support thereof, we will exercise our discretion and grant reconsideration only as to the issue of what constitutes the governmental body with which you were associated. We will now consider seriatim the arguments you proffer followed by a review of the submission made by Counsel. With regard to your assertion that a legislative assistant is not a public employee, this Commission upon applying an objective test correctly determined that your job description does fall within the purview of the Ethics Act. First, this Commission rejected your argument that your position does not afford you the opportunity or ability to recommend official action. The job description which was supplied to the Commission and with which you agreed clearly falls --- <. . bin-the-clef inition of public - employee" et -forth (Section 2) and in the regulations of the Commission (Section 1.1, subparagraph B(II), 51 Pa. Code 1.1). Second, this Commission dispelled your argument that your case should reach the same decision as that in Harbach, supra. Your job description was significantly different from the one presented in that instance. Harbach's duties were limited to phone calls, constituent contacts and other ministerial functions and such is the basis for a different outcome. Mr. Jeffrey D. Sharp Page 5 Third, your arguments concerning statutory interpretation were previously considered and dispelled by this Commission in Sharp, supra. As to the case of Phillips v. State Ethics Commission, 79 Pa. Commw. 491, 470 A.2d 659, 661 (1984), we did apply the principle as espoused by the court within the statutory confines of the definition of "public employee" under the Ethics Law. Finally, your argument that your restriction should be limited to Senator Baker and his staff restates the same assertion that was rebutted in Sirolli, Opinion 90 -006, namely, that the phrase "governmental body with which a public official or public employee is or has been associated" broadens the potential area of restriction beyond a specific division within the governmental body. The specific language of Section 3(g) coupled with the applicable definition compels us to adopt such an interpretation. In accord with the foregoing is the legislative intent, as derived from notes contained in the Report of the House Judiciary Committee on the Sunset Evaluation and Review of the Pennsylvania Ethics Commission (September 1987) and from the Legislative Journal of House (1989). As we noted in Sirolli, supra, regarding the amendments to the Act, "[I]t does not follow that such action was taken to effectuate a substantive change in the definition, as opposed to one of clarification." If, however, the Senate had intended for the meaning of the terms of the restriction to remain identical, the amendment would have so specified, or the phrase of "governmental body with which a public official or public employee is or has been associated" would have been eliminated entirely from the language of the Act. Turning to the arguments set forth by Counsel, nothing which they have presented compels us to differ from our previous decision that your governmental body in this instance is the entire Pennsylvania Senate. As to the assertion that the similarities between the language of Section 3(e) of Act 170 and Section 3(g) of Act 9 require following precedential authority under Act 170, such argument fails in light of the addition of the definition of "governmental body with which a public official or employee is or has been associated." The foregoing definition was inserted for a purpose, that being to give this Commission a legislative direction as to imposing the restriction of Section 3(g). The accompanying debate on that definition, albeit before the substitution of the phrase governmental body for entity, . reflects °specifically •an "'intent to broaden the scope of the restriction. More importantly such direction is found within the language of the definition. Thus, the proffered argument is without merit. Likewise, as to the Northeastern and Sitkins cases, the insertion of the definition directs a change as to the interpretation of governmental body; hence, these cases are clearly inappropriate. Counsels' argument that the General Assembly did not intend such an expansive post - employment restriction amounts simply to their legal interpretation. The foregoing is equally true as to Counsels' Mr. Jeffrey D. Sharp Page 6 recitation of the "Purpose" provision of Act 9 as a basis for illustrating legislative intent. As to the argument that the General Assembly's rejection of the term "entity" and retention of the term "governmental body" demonstrates the legislative intent of retaining the Commission's interpretation, such is dispelled by our analysis in Sirolli, supra. We must also reject Counsels' arguments concerning the • interpretation of the applicable definitions under the Statutory Construction Act. In Sirolli, supra, we correctly followed the Statutory Construction Act whereby we applied the specific phraseology of "governmental body with which a public official or public employee is or has been associated" as opposed to the more general term "governmental body." We must follow the Ethics Law, the definitions therein and the legislative intent which was to increase the scope of the restrictions as to what constitutes the governmental body with which associated. Such a result also serves to dispel Counsels' argument that the term "governmental body" is the controlling of the two definitional terms. Additionally, we conclude that if Senator Baker were the "governmental body" then the phrase "political subdivision" found within the definition of "governmental body with which a public official..." would be mere surplusage. Obviously, there could be no political subdivision for one Senator's office. We reject such an interpretation in light of the anomalous result that would follow. Parenthetically, it is interesting to note that the definition of "governmental body" does include, inter alia, "legislative body" which would encompass the Pennsylvania Senate. Regarding Counsel's reference to 1 Pa. C.S.A. S1921(b), we followed the letter of the statute by applying the term "governmental body with which..." as the General Assembly intended by Act 9 of 1989. We need not, therefore, address application of Section 1921(c) which provides guidelines for ascertaining legislative intent where words of a statute are not explicit. Although Counsel point out their disagreement with our review of the House Judiciary Committee's 1987 Sunset Report and the House Floor Debate of February 15, 1989, they do not offer any concrete support for aa-rs.---- such i S1grP..se em :} - "-^-' >°.v.aTi.— agrees- that— thB.- ratereacia ,m - cri al_a._. ha ma , .. "certain relevance ". Additionally, we do not find merit in Counsels' assertion that the General Assembly's rejection of "entity" and use of "governmental body" indicates legislative intent to reject an "expansive approach first accepted by the House." As set forth previously, Sirolli, supra, provided the correct interpretation of legislative intent which is to enlarge the restrictive scope of Section 3(g) in Act 9. Finally, we reject Counsels' contention that the application of the restriction should balance each individual's scope of influence weighed against the Conclusion: need for restrictions: We must apply the `. nevi` . deflnition o "governmental body with which a public official In find that the governmental body is the Pennsylvania Senate. The Legislative Assistant of a Pennsylvania Senator is a,public ,x£ employee subject to the provisions of the Ethics Law.__ Upon_, termination of service, the former, employee would be restricted for a periodaofZone year from representing a person before the Pennsylvania. Senate: Pursuant to Section 7(10), acts ( ) , .the person who acts ._in-good-faith-on ::. this opinion issued to him shall not be subject to` criminal . cor cini3r penalties for so acting provided the material facts are as statediin.'` the request. such. By t e Commissi lena G. Hughes, Chair This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. On the grant of reconsideration, Commissioner Dennis C. Harrington dissents. On the determination that the former governmental body of Jeffrey D. Sharp is the Pennsylvania Senate, Commissioners Robert 'W. Brown and Daneen E. Reese dissent.