HomeMy WebLinkAbout01-514 MentzerAnnette H. Mentzer
341 Dogwood Drive
Hershey, PA 17033
ADVICE OF COUNSEL
February 6, 2001
01 -514
Re: Former Public Official /Public Employee; Section 1103(g); Executive -Level State
Employee; Section 1103(i); Deputy Secretary for Legislative Affairs; Office of the
Governor; Business; The Pennsylvania State University.
Dear Ms. Mentzer:
This responds to your letters of January 2, 2001 and January 18, 2001, by which
you requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65
Pa.C.S. §1101 et seq., presents any restrictions upon employment of a Deputy
Secretary for Legislative Affairs following termination of service with the Office of the
Governor.
Fact: As Deputy Secretary for Legislative Affairs with the Office of the
o■ernor, your duties have included assisting in the development of the Governor's
legislative program, communicating the Governor's views to the General Assembly,
arranging meetings with legislators and legislative leaders, participating in
Administration development of policies and budgets, and coordinating legislative
liaisons of the departments and agencies under the direction of the Governor. You
have submitted a copy of a description from the Pennsylvania Manual of the function of
the Office of Legislative Affairs, which description is incorporated herein by reference.
Effective January 19, 2001, you are resigning from your aforesaid position to
assume a new position as the Director of Governmental Relations in the Office of
Governmental Affairs at The Pennsylvania State University. In your new position, you
will advocate for the University through the legislative process at both the state and
federal levels. You seek an advisory from the State Ethics Commission regarding the
restrictions of the Ethics Act that will apply to you following your departure from the
Office of the Governor.
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
Mentzer, 01 -514
February 6, 2001
Page 2
affords a defense to the extent the requestor has truthfully disclosed all of the material
facts.
As Deputy Secretary for Legislative Affairs with the Office of the Governor, you
would be considered a public official /public employee 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 /public employee 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:
§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 94 -011.
In applying Section 1103(i) to the facts which you have submitted, you are
advised that The Pennsylvania State University is considered a "business" as that term
is defined in the Ethics Act. Novak, Opinion 91 -009; McQuaide, Opinion 80 -043.
However, given that The Pennsylvania State University was established by an act of the
Pennsylvania Legislature (see, 24 P.S. §2531), you obviously did not actively participate
in "recruiting" the University to Pennsylvania. Therefore, Section 1103(i) would not
restrict you from being employed by, receiving compensation from, assisting, or acting
in a representative capacity for The Pennsylvania State University provided and
conditioned upon the assumption that you did not actively participate in recruiting or
inducing The Pennsylvania State University 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 Pennsylvania State University.
The restrictions of Section 1103(g) of the Ethics Act shall now be addressed.
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
restrict the former public official /public employee with regard to "representing" a
"person" before the governmental body with which he has been associated ":
Mentzer, 01 -514
February 6, 2001
Page 3
§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:
§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
of the former public employee may appear on routine invoices if required by the
Mentzer, 01 -514
February 6, 2001
Page 4
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 would be associated upon termination of
public service would be the Office of the Governor in its entirety, including but not
limited to the Office of Legislative Affairs. Therefore, for the first year after termination of
your service with the Office of the Governor, Section 1103(g) of the Ethics Act would
apply and restrict "representation" of "persons" before the Office of the Governor.
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. Specifically not addressed herein is the
applicability of the Governor's Code of Conduct.
Conclusion: Upon termination of service as Deputy Secretary for Legislative
Affairs with the Office of the Governor, you would become a former public official /public
employee 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
( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Under Section 1103(i) of the Ethics Act, you
would not be prohibited from being employed by, receiving compensation from,
assisting, or acting in a representative capacity for The Pennsylvania State University
conditioned upon the assumption that you did not actively participate in recruiting or
inducing The Pennsylvania State University 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 Pennsylvania State University.
With regard to Section 1103(g), the restrictions as outlined above must be followed.
Mentzer, 01 -514
February 6, 2001
Page 5
The former governmental body would be the Office of the Governor in its entirety. 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(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