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HomeMy WebLinkAbout01-509 WilsonDavid E. Wilson Director of Public Affairs Philadelphia Suburban Water Company 762 W. Lancaster Avenue Bryn Mawr, PA 19010 -3489 Dear Mr. Wilson: ADVICE OF COUNSEL January 22, 2001 Re: Former Public Employee; Section 1103(g); Assistant to Senator. 01 -509 This responds to your letters dated December 14, 2000 and December 19, 2000, by which you requested advice from the State Ethics Commission. Issue: Whether, as a former assistant to a State Senator, you would be considered a "former public employee" subject to the restrictions of the revolving door provision of the Public Official and Employee Ethics Act ( "Ethics Act ") at 65 Pa.C.S. §1103(g). Facts: For the past six years, you served as an assistant to then Senate Majority L e ade r F. Joseph Loeper in his district office. You state that as Senator Loeper's assistant, you handled mostly constituent issues with only minimal contact with the various Harrisburg offices. You state that you never had a formal job description, but that your former duties for Senator Loeper were essentially as follows: 1) Representing the Senator at various civic and local governmental meetings throughout Delaware County; 2) Handling constituent correspondence and ensuring that all letters and phone calls were answered in a timely and accurate manner; 3) Acting as a liaison for the residents of the 26 Senatorial district with various state departments including, but not limited to, the Departments of Revenue, Public Welfare, and Labor and Industry; and 4) Answering constituent calls and assisting constituents in various matters such as filling out PACE and Rent Rebate forms. You have recently been hired as the Director of Public Affairs for the Philadelphia Suburban Water Company in Bryn Mawr, Pennsylvania. You state that you will be Wilson, 01 -509 January 22, 2001 Page 2 registering as a lobbyist for your new employer. You ask to what extent you may lobby the various Senate offices given your prior service as a district office staff member. 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, the 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. The question which you pose is whether, as a former assistant to a State Senator, you would be restricted by the Ethics Act with regard to lobbying various Senate offices. The provision of the Ethics Act which pertains to your request is the revolving door provision at 65 Pa.C.S. §1103(g). Section 1103(g) provides: §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). Section 1103(g) of the Ethics Act applies to restrict "former public officials" and "former public employees." In considering whether you are a "former public employee" subject to the restrictions of Section 1103(g), the threshold issue is whether your former duties and responsibilities would bring you within the definition of "public employee" as set forth in the Ethics Act. In the absence of a job description, this Advice is necessarily based solely upon your own description of such duties and responsibilities and is conditioned upon the assumption that all of the material facts have been submitted. The Ethics Act defines the term "public employee" as follows: §1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: 1 contracting or procurement; 2 administering or monitoring grants or subsidies; 3 planning or zoning; 4 inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. Wilson, 01 -509 January 22, 2001 Page 3 65 Pa.C.S. §1102. The regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary - treasurers acting as managers, police chiefs, chief clerks, chief Wilson, 01 -509 January 22, 2001 Page 4 purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superinten- dents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code §11.1. In applying the definition of "public employee" and the related regulatory criteria to the functions of your former position, the necessary conclusion is that in your former capacity as an assistant to Senator Loeper, you would not be considered a "public employee" as that term is defined in the Ethics Act. Based upon an objective review, you were not responsible for taking or recommending official action of a non - ministerial nature with regard to any of the five categories set forth in the Ethics Act's definition of the term "public employee." Given that in your former capacity, you would not be considered a "public employee" as that term is defined in the Ethics Act, you are not now to be considered a "former public employee" subject to Section 1103(g) of the Ethics Act. Thus, Section 1103(g) of the Ethics Act would not apply to restrict you with regard to lobbying the various Senate offices. The only provisions of the Ethics Act that would apply to you would be Sections 1103(b) and 1103(c), which apply to everyone. For your information, Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /public employee anything of monetary value and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public 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 Wilson, 01 -509 January 22, 2001 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the Legislative Code of Conduct. Conclusion: Based upon the submitted facts, in your former capacity as an assistant to then Senate Majority Leader F. Joseph Loeper, you would not be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1102. Therefore, you are not a "former public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act would not apply to restrict you with regard to lobbying the various Senate offices. The only provisions of the Ethics act that would apply to you would be Sections 1103(b) and 1103(c) which apply to everyone. In the absence of a job description, this Advice is necessarily based solely upon your own description of your former duties and responsibilities and is conditioned upon the assumption that all of the material facts have been submitted. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), an Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal proceeding, provided the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code §13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717 -787- 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel