HomeMy WebLinkAbout00-010 JudgeI. ISSUE:
OPINION OF THE COMMISSION
Before: Daneen E. Reese, Chair
Julius Uehlein
John J. Bolger
Frank M. Brown
Susan Mosites Bicket
DATE DECIDED: September 21, 2000
DATE MAILED: October 5, 2000
00 -010
The Honorable Robert A. Judge, Sr.
Secretary of Revenue
Commonwealth of Pennsylvania
Department of Revenue
11th Floor, Strawberry Square
Harrisburg, PA 17128 -1100
Re: Former Public Official /Public Employee; Section 1103); Executive -Level State
Employee; Section 1103(i); Secretary of Revenue; Department of Revenue;
Delaware River Port Authority; Employment
Dear Mr. Secretary:
This responds to your letter of September 11, 2000 by which you requested an
advisory from the State Ethics Commission.
Whether the Public Official and Employee Ethics Act ( "Ethics Act ")
presents any restrictions upon the employment of the Secretary of Revenue following
termination of service with the Department of Revenue, Commonwealth of
Pennsylvania.
11. FACTUAL BASIS FOR DETERMINATION:
You have served as Secretary of Revenue for the Commonwealth of
Pennsylvania since January 1995 and will be leaving your position on October 2, 2000
to work at the Delaware River Port Authority (DRPA).
At the DRPA you will be the Assistant to the Chairman working on projects and
issues relating to Board action. You have had no business dealings with the DRPA
which you characterize as an authority of the Commonwealth.
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October 5, 2000
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You seek guidance on the restrictions that may apply to you in your new position.
III. DISCUSSION: It is initially noted that pursuant to Sections 1107(10) and
1107(11) of the Ethics Act, 65 Pa.C.S. § §1107(10), (11), advisories are issued to the
requestor based upon the facts which the requestor has submitted. In issuing the
advisory based upon the facts which the requestor has submitted, this Commission
does not engage in an independent investigation of the facts, nor does it speculate as to
facts which have not been submitted. It is the burden of the requestor to truthfully
disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § §1107(10), (11). An
advisory only affords a defense to the extent the requestor has truthfully disclosed all of
the material facts.
In the capacity as Secretary of Revenue for the Department of Revenue, you
would be considered a public official and an "executive -level State employee" subject to
the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S.
§1102; 51 Pa.Code §11.1.
Consequently, upon termination of public service, you would become a former
public official and a former executive -level State employee subject to the restrictions of
Section 1103(g) and Section 1103(i) of the Ethics Act.
Section 1103(i) restricts former executive -level State employees as follows:
Section 1103. Restricted activities.
(i) Former executive -level employee. - -No former
executive -level State employee may for a period of two
years from the time that he terminates employment with this
Commonwealth be employed by, receive compensation
from, assist or act in a representative capacity for a business
or corporation that he actively participated in recruiting to this
Commonwealth or that he actively participated in inducing to
open a new plant, facility or branch in this Commonwealth or
that he actively participated in inducing to expand an existent
plant or facility within this 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 Pa.C.S. §1103(i).
Section 1103(i) restricts the ability of a former executive -level State employee to
accept employment or otherwise engage in business relationships following termination
of State service, under certain narrow conditions. The restrictions of Section 1103(i)
apply even where the business relationship is indirect, such as where the business in
question is a client of the new employer, rather than the new employer itself. See,
Confidential Opinion No. 94 -011. However, Section 1103(i) would not restrict you from
being employed by, receiving compensation from, assisting, or acting in a
representative capacity for the Delaware River Port Authority (DRPA) provided and
conditioned upon the assumptions that you did not actively participate in recruiting or
inducing the DRPA to open or expand a plant, facility, or branch in Pennsylvania,
through a grant or loan of money or a promise of a grant or loan of money from the
Commonwealth of Pennsylvania to the DRPA. The above is for informational purposes
since it is obvious that you have not and could not recruit or induce the DRPA.
Unlike Section 1103(i), Section 1103(g) does not prohibit a former public
official /public employee from accepting a position of employment. However, it does
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October 5, 2000
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restrict the former public official /public employee with regard to "representing" a
"person" before the governmental body with which he has been associated ":
Section 1103. Restricted activities.
(g) Former official or employee. - -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.
65 Pa.C.S. §1103(g) (Emphasis added).
The terms "represent," "person," and "governmental body with which a public
official or public employee is or has been associated" are specifically defined in the
Ethics Act as follows:
Section 1102. 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.
"Person." A business, governmental body, individual,
corporation, union, association, firm, partnership, committee,
club or other organization or group of persons.
"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.
65 Pa.C.S. §1102.
The term "Person" is very broadly defined. It includes, inter alia, corporations and
other businesses. It also includes the former public employee himself, Confidential
Opinion 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007.
The term "representation" is also broadly defined to prohibit acting on behalf of
any person in any activity. Examples of prohibited representation include: (1) personal
appearances before the former governmental body or bodies; (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; and (5) lobbying. Popovich,
Opinion 89 -005.
Listing one's name as the person who will provide technical assistance on a
proposal, document, or bid, if submitted to or reviewed by the former governmental
body, constitutes an attempt to influence the former governmental body. Section
1103(g) also generally prohibits 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 pertain to a contract that existed prior to
termination of public service, Shay, Opinion 91 -012. However, if such a pre - existing
contract does not involve the unit where the former public employee worked, the name
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of the former public employee may appear on routine invoices if required by the
regulations of the agency to which the billing is being submitted. Abrams/Webster,
Opinion 95 -011.
A former public official /public employee may assist in the preparation of any
documents presented to his former governmental body. However, the public
official /public employee may not be identified on documents submitted to the former
governmental body. The public official/ public employee may also counsel any person
regarding that person's appearance before his former governmental body. Once again,
however, the activity in this respect should not be revealed to the former governmental
body. The Ethics Act would not prohibit or preclude making general informational
inquiries to the former governmental body to secure information which is available to the
general public, but 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.
Section 1103(g) only restricts the former public official /public employee with
regard to representation before his former governmental body. The former public
official /public employee is not restricted as to representation before other agencies or
entities. However, the "governmental body with which a public official /public employee is
or has been associated is not limited to the particular subdivision of the agency or other
governmental body where the public official /employee had influence or control but
extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at
290, 291; Sirolli, Opinion No. 90 -006; Sharp, Opinion 90- 009 -R.
The governmental body with which you were associated upon termination of
public service would be the Department of Revenue in its entirety. Therefore, for the first
year after termination of your service with the Department of Revenue, Section 1103(g)
of the Ethics Act would apply and restrict "representation" of "persons" before the
Department of Revenue.
Parenthetically, we note that you characterize the DRPA as an authority of the
Commonwealth...." The DRPA is in fact a bi -state agency created by a compact
between the Commonwealth and New Jersey. See, DRPA v. SEC, 585 A.2d 587
(1991). In any event, the status of DRPA is irrelevant because we have determined that
the restrictions of Section 1103(g) apply regardless of whether the new employer is a
private entity or another governmental body. See, Ledebur, supra.
Based upon the facts which have been submitted, this Advice has addressed the
applicability of Sections 1103(g) and 1103(i) only. It is expressly assumed that there has
been no use of authority of office for a private pecuniary benefit as rohibited by Section
1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of
the Ethics Act provide in part that no person shall offer to a public official /employee and
no public official /employee shall solicit or accept anything of monetary value based
upon the understanding that the vote, official action, or judgment 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.
Lastly, the propriety of the proposed conduct has only been addressed under the
Ethics Act; 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 Act.
IV. Conclusion: Upon termination of service with the Department of
Revenue, the Secretary of Revenue would become a former public official and a former
executive -level State employee subject to the restrictions of Section 1103(g) and
Section 1103(i) of the Public Official and Employee Ethics Act, Act 93 of 1998, Chapter
11. Under Section 1103(i) of the Ethics Act, the Secretary would not be prohibited from
being employed by, receiving compensation from, assisting, or acting in a
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October 5, 2000
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representative capacity for the Delaware River Port Authority based upon the
assumptions that he did not actively participate in recruiting or inducing the DRPA to
open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of
money or a promise of a grant or loan of money from the Commonwealth of
Pennsylvania. With regard to Section 1103(g), the restrictions as outlined above must
be followed. The former governmental body is the Department of Revenue. The
propriety of the proposed conduct has only been addressed under the Ethics Act.
Further, should service be terminated, as outlined above, the Ethics Act would
require that a Statement of Financial Interests be filed by no later than May 1 of the year
after termination of service.
Pursuant to Section 1107(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.
This letter is a public record and will be made available as such.
Finally, a party may request the Commission to reconsider its Opinion. The
reconsideration request must be received at this Commission within thirty days of the
mailing date of this Opinion. The party requesting reconsideration must include a
detailed explanation of the reasons as to why reconsideration should be granted in
conformity with 51 Pa. Code §21.29(b).
By the Commission,
Daneen E. Reese
Chair