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HomeMy WebLinkAbout94-012 SingelSTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: James M. Howley, Chair Roy W. Wilt Austin M. Lee Allan M. Kluger John R. Showers DATE DECIDED: 12/30/94 DATE MAILED: 01/05/94 94 -•012 The Honorable Mark S. Singel Lieutenant Governor Commonwealth of Pennsylvania Lieutenant Governor's Office 200 Main Capitol Building Harrisburg, 17120 -0002 Re: Public Official; Former Public Official; Section 3(g); Executive -Level State Employee; Section 3(i); Lieutenant Governor. Dear Lieutenant Governor Singel: This Opinion is issued in response to your advisory request on December 22, 1994. I. ISSUE: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon the Lieutenant Governor following termination of service as to interaction with the Commonwealth of Pennsylvania. II. FACTUAL BASIS FOR DETERMINATION: You seek clarification of your duties and obligations as a Constitutional Officer of the Commonwealth of Pennsylvania as you prepare to leave office at the conclusion of your term as Lieutenant Governor. Your term of office will expire on January The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 2 17, 1995 with the swearing in of the newly elected Lieutenant Governor. Your inquiries, relative to your legal and ethical responsibilities, center on the proper role of your activities as Lieutenant Governor prior to the conclusion of your elected term on January 17, 1995 and, in addition, the proper role that you may pursue in dealing with the Executive and Legislative branches upon conclusion of your term in office. Your career in governmental service began as a member of the Pennsylvania General Assembly in December, 1980 when you served as State Senator from Cambria, Clearfield and Somerset Counties until January, 1987. During that time you participated in all activities relative to your duties as an elected member of the Pennsylvania State Senate which included constituent service, preparation and introduction of legislation, caucus and policy development and general duties associated with the daily operation of a State Senate office. From the position of State Senator, you were elected to the Office of Lieutenant Governor of the Commonwealth of Pennsylvania, wherein you served two successive four -year terms. In addition to your Constitutional duties as a member of the Board of Pardons and President of the Senate, you fulfilled your duties assigned to you by the Governor. You were also directly involved with the Pennsylvania Emergency Management Agency (PEMA) and the Pennsylvania Energy Office (PEO). You are exploring the opportunity of entering the area of governmental affairs and business consulting in both the Washington D. C. and the Harrisburg areas and have begun the process of examining other ventures in the private sector. Your discussions have been preliminary as to your future endeavors. You believe that it is important to obtain an opinion so that you may proceed appropriately according to the present Ethics Law and Regulations. You seek guidance from this Commission as to any specific restrictions upon your interaction with state government after your term of office and secondly as to business associates, who have no similar restrictions, in their interaction with those agencies in which you are restricted. At the public meeting, the Chief Counsel to the Lieutenant Governor appeared and made himself available to answer questions. Counsel queried as to whether being Lieutenant Governor makes the former governmental body the entire executive branch since there are five elected statewide offices who are part of the executive branch: the Governor, the Lieutenant Governor, the Attorney General, the Treasurer and the Auditor General. Because the The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 3 Lieutenant Governor is first in the line of succession to the Governor, Counsel stated that it does not necessarily follow that the governmental body of the Lieutenant Governor is the entire executive branch. It could not be argued that the other three state officials have authority over executive branch agencies which are legally and practically under the control of the Governor. That same argument would apply to the Lieutenant Governor who does not have power over the executive branch controlled by the Governor. If something would happen to the Governor, the Lieutenant Governor would be (Acting) Governor but, absent that, the Lieutenant Governor has none of the Governor's authority. The Lieutenant Governor only may exercise control over the agencies under the Governor to the extent that the Governor delegates such power to the Lieutenant Governor. The few agencies where there has been such a delegation are noted above. Finally, Counsel cited Kline, Opinion infra which he asserted should not be extended to this case. III. DISCUSSION: Initially, we commend you for seeking guidance from this Commission as to the implications of the Ethics Law upon you following completion of your term as Lieutenant Governor. As Lieutenant Governor for the Commonwealth of Pennsylvania, you are to be considered a "public official" within the definition of that term as set forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P.S. §402; 51 Pa. Code §11.1. In addition, you are an executive -level State employee as that term is defined under the Ethics Law, and hence you are subject to the requirements of Section 3(i) of the Ethics Law, infra. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2. Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 4 confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. "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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(i).of the Ethics Law provides: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 5 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. Under Section 3(a) of the Ethics Law quoted above, a public official /employee may not use the authority of public office/ employment or confidential information received by holding such a public position for the private pecuniary benefit of himself, a member of his immediate family, or business with which he or a member of his immediate family is associated. In applying Section 3(a) of the Ethics Law to the proffered facts, Section 3(a) would prohibit you from using the position or emoluments of your public position or confidential information to advance an opportunity of private employment. Once again, it is not suggested that you have engaged in such conduct and the foregoing is provided to give a complete response to your inquiry. As to Section 3(i) of the Ethics Law, you are subject to that provision of law since you are an executive -level State employee. However, Section 3(i) would not restrict you from a position of employment provided you did not actively participate in recruiting or inducing such company or business to open a new facility or branch in the Commonwealth or participate in inducing such company or business to expand an existing plant or facility that was accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to such company or business. The facts do not indicate whether you actively participated in recruiting or inducing any company or business to open a new facility or branch or expand through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth. Conditioned upon the assumption that there has been no active participation by you in such recruitment or inducement of any company or business to open or expand a facility or branch through The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 6 a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania, you would not be prohibited from accepting a position of employment with any company or business. If you do start a consulting business, Section 3(i) would have no application because it would be your own business. Upon termination of public service, you would become a "former public official" subject to Section 3(g) of the Public Official and Employee Ethics Law. Section 3(g) of the Ethics Act provides that: Section 3. Restricted activities. (g) No former public official or public employee shall represent a person, with promised or actual compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. Initially, to answer your request, the governmental body with which you were associated while serving as Lieutenant Governor must be identified. Then, the scope of the prohibitions associated with the concept and term of "representation" must be reviewed. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would be the Lieutenant Governor's Office, PEMA, PEO, the Senate, the Board of Pardons, the Governor's Office, the departments and all executive boards, commissions and agencies, hereinafter collectively referred to as the Offices. Kline, Opinion 79 -001. The above is based upon the language of the Ethics Law, the legislative intent (Legislative Journal of House, 1989 Session, No. 15 at 290, 291) and the prior precedent of this Commission, noted above. The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 7 In Sirolli, Opinion 90 -006, we found that a former Division Director of the Department of Public Welfare (DPW) was not merely restricted to the particular Division as was contended but was in fact restricted to all of DPW regarding the one year representation restriction. Similarly in Sharp, Opinion 90- 009 -R, it was determined that a former legislative assistant to a state senator was not merely restricted to that particular senator but to the entire Senate as his former governmental body. Therefore, within the first year after termination of service, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Offices. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit..." Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. §1901, it is clear that the governmental body with which you were associated is the Offices. We are aware that an argument may be proffered that the governmental body for the Lieutenant Governor should not be extended to the Governor's Office, the departments and all executive boards, commissions and agencies. Even though the Lieutenant Governor is a separately elected office from the Governor, we believe that the powers granted in law to the Lieutenant Governor warrant our conclusion that the governmental body of the Lieutenant Governor also would include the Governor's Office, the departments and all executive boards, commissions and agencies. See the Pennsylvania Constitution; Administrative Code of 1929, as amended; Commonwealth Attorney Act. In particular, the Lieutenant Governor is constitutionally designated to be an Officer of the Executive Department of the Commonwealth. Const. Art. 4, The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 8 Section 1. The Office of Lieutenant Governor is an elected position. 71 P.S. §791. However, the Lieutenant Governor is elected jointly with the Governor by a single vote applicable to both offices, "for the same term, and subject to the same provisions as the Governor." Const. Art. 4, Section 4. The election laws which apply to the Governor also apply to the Lieutenant Governor. 71 P.S. §792. The Lieutenant Governor is to exercise the powers and perform the duties imposed upon him by the Constitution and laws of the Commonwealth. 71 P.S. §242. The Lieutenant Governor is the President of the Senate. Const. Art. 4, Section 4. The Lieutenant Governor is Chairman of the Board of Pardons and is responsible for the administrative functions of that Board. Const. Art. 4, Section 9; 71 P.S. § 5113, 732- 501(c). The Lieutenant Governor is a Member of the Pennsylvania Emergency Management Council. 35 Pa. C.S. 57312(a). If the Governor becomes disabled, the Lieutenant Governor serves as "Acting Governor." 71 P.S. §§ 784.1- 784.3. The "powers, duties, and emoluments" of the office of Governor "devolve upon the Lieutenant Governor until the disability is removed." Const. Art. 4, Section 13. The Lieutenant Governor becomes the Governor in the case of the death, conviction on impeachment, failure to qualify or resignation of the Governor. Const. Art. 4, Section 13. Almost all elected civil officers are to be removed from Office by the Governor "for reasonable cause, after due notice and full hearing, on the address of two - thirds of the Senate." Const. Art. 6, Section 7. The .Lieutenant Governor is one of the few enumerated exceptions to the rule, together with the Governor himself, members of the General Assembly, and judges. Id. In addition to his constitutional and statutory duties, the Lieutenant Governor may serve in various capacities under the Executive Orders of the Governor. Parenthetically, we do note that you served as Acting Governor during Governor Casey's medical treatment. We are also aware of the five elected statewide officials comprising the executive branch as per the Pennsylvania Constitution, Article IV, Section 1. We, however, find that the offices of the Auditor General, Treasurer and Attorney General are distinguishable as operating totally independently of the Governor, unlike the Lieutenant Governor. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, 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 The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 9 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 governmental body. In respect to the one year restriction against such "representation," the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person in any activity which includes, but is not limited to, the following: personal appearances, negotiations, lobbying and submitting bid or contract proposals which are signed by or contain the name of a former public official or public employee. This Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including, but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed by or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is, representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. We have also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. In Shay, Opinion 91 -012, we held that Section 3(g) would prohibit the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertained to a contract which existed prior to termination of public service. Therefore, within the first year after termination of service, you should not The Honorable Mark S. Singel, 94 -012 January 5,1995 Page 10 engage in the type of activity outlined above. You may assist in the preparation of any documents presented to the Offices. However, you may not be identified on documents submitted to the Offices. You may also counsel any person regarding that person's appearance before the Offices. Once again, however, the activity in this respect should not be revealed to the Offices. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Offices to secure information which is available to the general public. This must not be done in an effort to indirectly influence the former governmental body or to otherwise make known to that body the representation of, or work for the new employer. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. In Confidential Opinion 93 -005, we held that Section 3(g) precludes a former public official /employee from providing consulting services to his former governmental body for a period of one year after termination of service in that the prohibition against representing a person includes the former public official /employee representing himself. As to your inquiry regarding the prohibition against your interaction with state government, the restrictions as outlined above set forth the parameters of such interaction. Regarding the limitations upon your business associates, who have no similar restrictions, from interacting with those agencies from which you are restricted, you are advised that no such restrictions would be imposed upon those other individuals. However, we do note that any action by those individuals on your behalf, as for example using your name or submitting documents which include your name on letterhead or elsewhere or engaging in any other such activity as noted above vis -a -vis your former governmental body, the Offices, would be encompassed within the one year restriction. We are aware of the decision in Stephens v. SEC, 132 Pa. Commw. Ct. 71, 571 A.2d 1120 (1990), wherein Commonwealth Court ruled that Section 3(e) of Act 170 of 1978 (now Section 3(g) of Act 9 of 1989) could not be applied to a situation where a document was submitted to the former governmental body as to which the former public employee's name was included without his knowledge or authorization. The Court . concluded that such a submission did not constitute "doting] The Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 11 something" so as to violate the Ethics Law. Stephens v. SEC at 2. In our view, Stephens would have no application to the instant case in that you would have knowledge of such action by your business associates on your behalf. We do not suggest that you would engage in such activities but merely set forth the implications of such a business arrangement under the Ethics Law. See Dricrqs, Opinion 94- 007; Confidential Opinion 94 -011. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of the Ethics Law. IV. CONCLUSION: The Lieutenant Governor for the Commonwealth of Pennsylvania is a "public official" and executive -level State employee subject to the provisions of the Ethics Law. Section 3(i) of the Ethics Law would not prohibit the Lieutenant Governor from accepting a position of employment with a business or company based upon the assumption that he did not actively participate in inducing or recruiting said company to open or expand a facility or branch through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Upon termination of service, the Lieutenant Governor would become a "former public official" subject to Section 3(g) of the Ethics Law. The former governmental body is the Lieutenant Governor's Office, the Senate, the Board of Pardons, PEMA, PEO and the Governor's Office, the departments and all executive boards, commissions and agencies. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Law. Further, when service is terminated, as outlined above, the Ethics Law also requires that a Statement of Financial Interests be filed for the year following termination of service. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. 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 Honorable Mark S. Singel, 94 -012 January 5, 1995 Page 12 The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, James M. Howley Chair Commissioner John R. Showers did not participate in this matter.