Loading...
HomeMy WebLinkAbout90-006 SandersMs. Nancy Sirolli c/o Paula G. Sanders Duane, Morris & Heckscher Attorneys at Law The Payne Shoemaker Building 240 North Third Street Tenth Floor P.O. Box 1003 Harrisburg, PA 17108 -1003 Dear Ms. Sirolli: I. Issue: Before: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION II. Factual Basis for Determination: Helena G. Hughes, Chair Robert W. Brown, Vice Chair G. Sieber Pancoast Dennis C. Harrington James M. Howley DATE DECIDED: March 30, 1990 DATE MAILED: May 3. 1990 90 - 006 Re: Former Public Employee, Governmental Body, Governmental Body with Which a Public Official or Public Employee Is or Has Been Associated, DPW, Division Director, Case Management Program, Section 3(g), Appeal of Advice of Counsel. This Opinion is issued pursuant to your appeal of the Advice of Counsel 89 -589, issued on November 30, 1989. Whether the former division director of the Case Management Program in the Department of Public Welfare is limited in representing a person for a period of one year before the Department of Public Welfare. The issue which you presented was originally processed as a request for an advice of counsel and as a result on November 30, 1989 Advice of Counsel No. 89 -589 was issued. That advice concluded that Ms. Nancy Sirolli as the former Division Director for the Office of Case Management Program, hereinafter Office, was restricted for a period of one year from representing a person before the Department of Public Welfare, hereinafter DPW. Ms. Nancy Sirolli Page 2 On December 15, 1989 the Commission received your letter and notice of appeal wherein you appealed the above Advice. By letter of December 21, 1989 you were notified that your appeal would go before the full Commission and that you would be notified of the date, time and location of that meeting by separate letter. You were then notified by letter of January 24, 1990 of the date, time and location of the public meeting of February 23, 1990. At that meeting you requested and were granted a continuance. By letter of March 6, 1990, you received the requisite notice of the meeting of March 30, 1990. In your appeal of advice you allege that you disagree with the conclusion of the Advice of Counsel. In particular, you state that as Division Director of the Case Management Program of DPW you served within a division of an administrative department. You argue that the governmental body with which you were associated is limited to the Office but not DPW, as was determined in the Advice of Counsel. Since you do not challenge your status as a public employee or the scope of the term "represent" as set forth in the Advice, but merely challenge the Advice as to the application of the term "governmental body with which a public official or public employee is or has been associated ", we will limit our review to the single issue that you have raised. III. Discussion: As the Division Director in the Office of Case Management Programs in the Department of Public Welfare, you were a public employee as that term is defined in the Public Official and Employee Ethics Law. As such, your conduct is subject to the provisions of that law. Further, upon termination of service, you would become a former public employee subject to Section 3(g) of the Ethics Law. 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. In addition, the following terms are defined under the Ethics Law: Section 2. Definitions. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State Ms. Nancy Sirolli Page 3 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. "Governmental body." Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative or Judicial Branch of a State, a nation, or a political subdivision thereof or an agency performing a governmental function. To resolve the issue as to whether you would be restricted merely to the Office or to all of DPW, the focus of our attention must be directed to the two above quoted definitions. We note that the definition "Governmental body with which a public official or public employee is or has been associated" is the definition that is specifically used within the restrictive language of Section 3(g). If we were to merely consider the phrase "Governmental body" you might have an arguable point that governmental body, would be limited to a "...division...of...any agency..." To do so would require us to ignore the other term which is specifically used in Section 3(g). We are compelled to use the particular phrase used in Section 3(g) rather than the general phrase "Governmental body." 1 Pa. C.S.A. 1933 specifically provides: Whenever a general provision in a statute shall be in conflict with a special provision on the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail. In applying the specific definition to the instant matter, we conclude that the governmental body with which you were associated is Ms. Nancy Sirolli Page 4 DPW which would include the agency (DPW) and the "subdivisions and offices" therein. We must effectuate the intent of the General Assembly as to Act 9 of 1989. 1 Pa. C.S.A. 1921 (a), infra. Even if we were to assume that a question existed as to the interpretation of the above definitional phrase, 1 Pa. C.S.A. 1921(c) provides, in part: (c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: (1) The occasion and necessity for the statute. (2) The circumstances under which it wa enacted. (3) The mischief to be remedied. (4) The object to be attained. (5) The former law, if any, including other statues upon the same or similar subjects. It is further provided in 1 Pa. C.S.A. 1922(5): (5) That the General Assembly intends to favor the public interest as against any private interest. Under Act 170 of 1978, this Commission did narrowly limit the former governmental body to only that subdivision wherein the former public official /employee exercised responsibility, control and influence. Ewing, Opinion 79 -010. Act 9 of 1989 amended Act 170 of 1978 by changing the law regarding the one year representation restriction. Definitions were also added relative to Section 3(g) of the Ethics Law. In applying the criteria of 1 Pa. C.S.A. 1921(c) quoted above, it is clear that the General Assembly disagreed with the interpretations placed upon the former Section 3(e) by this Commission. During our sunset review process and during the debate on House Bill 75, criticism was made about our prior decisions regarding the narrow interpretation applied to the term governmental body. In particular, the Report of the House Judiciary Committee on the Sunset Evaluation and Review of the Pennsylvania Ethics Commission dated September 28, 1987 contained the following: The term "governmental body" has been interpreted by the Commission in a manner which Ms. Nancy Sirolli Page 5 may make the "revolving door" provisions of the Act less restrictive than intended. The Committee suggests that consideration be given to a definition of the term, "governmental body with which a public official or public employee is or has been associated." As to House Bill 75, on February 15, 1989, an amendment was offered to the definition of "governmental body with which a public official or public employee is or has been associated" to include the phrase "and subdivisions and offices within that entity." The fallowing commentary by the primary sponsor of the language reflects the reason for the amendment which was subsequently adopted: This amendment deals with a narrow situation which we discovered in hearings on this subject in the Judiciary Committee last session. Employees, for instance, of the Pennsylvania Department of Transportation who worked for one engineering district were found by a decision of the Ethics Commission to be able to, immediately upon retiring or leaving employment, represent clients in practice with other parts of the Pennsylvania Department of Transportation, including their neighboring engineering district. 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, and my language simply makes it clear in the definition of "governmental body" that we are including subdivisions and offices within that entity. Legislative Journal of House, 1989 Session, No. 15 at 290, 191. Subsequently, on June 12, 1989 the phraseology of the definition was again amended to delete the word "entity" and substitute "governmental body ". The latter amendment was made in Senate Committee without comment. After a review of relevant factors and provisions of law it is our conclusion that the General Assembly has thus amended the definition at issue with the intent to broaden that definition to include the entire governmental body and not merely the subdivisions therein. Since the General Assembly has duly enacted this change, we must carry out the legislative intent. 1 Pa. C.S.A. 1921(a) provides in part: Ms. Nancy Sirolli Page 6 (a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. See also 1 Pa. C.S.A. 1901. You, however, argue that the amendments contained in Act 9 of 1989 intended to rectify uncertainties as to what constituted the former governmental body by providing an "employment" test. In particular, you assert that you worked and were associated with the Office and that employer would be your governmental body. The governmental body in your view would include any subdivisions within that governmental body (employer). Even if we were to accept the proffered "employer" test, such would be unavailing because you were employed by DPW and not the Office. You argue that such an interpretation would render the phraseology "and subdivisions and offices within that governmental body" as surplusage. We believe that such language was added for the reason set forth in the amendment: "...my language simply made it clear in the definition of 'governmental body' that we are including subdivision and offices within that entity." Id. If we do not accept the "employer" test, you assert that governmental body could be extended to all offices under the Governor's jurisdiction. Such an argument is without merit because the definition references "Ct]he governmental body within state government..." (Emphasis added). The above definition clearly would limit you to DPW as your former governmental body but not all agencies under the Governor. You suggest that the Advice is arbitrary because if you were employed by the Department of Health, then you would not be restricted as to DPW. Your argument overlooks the obvious that, in your hypothetical, you would be restricted from the entire Department of Health. After referencing the general definition of "Governmental body ", you emphasize that the phrase specifically includes a "...bureau, division, service, office..." Although such definition includes the above, it also includes "department." The reason for such an all encompassing definition relates to its multi - functional use throughout our Act. For example, Section 5(7) of the Ethics Law excludes listing expenses for travel and lodging if reimbursed by the governmental body." The fact that the definition includes, inter alia, a "nation" illustrates the diverse usage of this definition. As we noted above, we must confine our consideration to the specific definition that is used It is argued that because HS 75 was amended in Senate Committee, the legislative debate may not be used to indicate intent since the Ms. Nancy Sirolli Page 7 Senate intended to change the definition. Although we may accept that the Senate wanted to make a change, such action could have occurred for any number of reasons. Further, it does not follow that such action was taken to effectuate a substantive change in the definition, as opposed to one of clarification. In that we do not have the benefit of any official Senate commentary, we must follow the espoused intent when the amendment was submitted in the House. 1 Pa. C.S.A. 1939 provides in this regard: The comments or report of the commission, committee, association or other entity which drafted a statute may be consulted in the construction or application of the original provisions of the statute if such comments or report were published or otherwise generally available prior to the consideration of the statute by the General Assembly, but the text of the statute shall control in the event of conflict between its text and such comments or report. If indeed the intent of the senate amendment was to insure that the Commission continued to construe the one year representation restriction as it had in the past, then such could have been clearly stated or more likely the definition of "governmental body with which a public official or public employee is or has been associated" could have been deleted completely. Such was not done and thus, we must determine why the phrase "and subdivisions and offices with" was left intact. We must conclude that there was an intent to more strictly require a former official or employee's conduct in accordance with the House commentary. The General Assembly does not intend surplusage in its enactments. Habecker v. Nationwide Insurance Company. 299 Pa. Super 463, 445 A.2d 1222 (1982). Finally, it is argued that using the "top rung" of a body does not comport with the overall intent of Section 3(g) in restricting representation to only the area where influence and control existed. Since our determinations under Act 170 of 1978 limited a former public official /employee's governmental body to the area of influence and control and since the General Assembly changed the law, we must adhere to those amendatory provisions. In this case, based upon the definition in Act 9 of 1989 and the legislative intent, we must conclude the that your governmental body is DPW. We also note that we have an six occasions since the passage of Act 9 of 1989 applied the provisions of Section 3(g) to determine what constituted a former public official /employee's governmental body. Ms. Nancy Sirolli Page 8 In Popovich, Opinion 89 -005, we determined that a public employee who worked in a district office of PennDot was restricted for a period of one year after termination of service to all of PennDot. The application of former governmental body was extended further in Nixon, Opinion 89 -006. In the cited case, the public employee served as the marketing director in the Department of General Service (DGS). Because the influence and input of the marketing director extended beyond DGS, we found that the former governmental body included all of DGS but could also extend to other agencies as well. In confidential Opinion, 89 -019, we opined that the former governmental body of a public employee who worked in the director's office of a municipality extended to the municipality and not merely the director's office. In Morris, Opinion 89 -026 we found that a former member of the Pennsylvania Health Care Cost Containment Council was restricted for a one year period from representing a person before that Council. In Pollock, Opinion 89 -031, we decided that the former governmental body of a Pittsburgh City Councilmember was not merely limited to Council but to the entire City of Pittsburgh including other government units and authorities in Pittsburgh. Parenthetically our decision in the cited case resulted in part from testimony from the Councilmember as to the inter connection and commingling of functions as to the various governmental units within the City of Pittsburgh. Finally, in Hitt, Opinion, 90 -005, we determined that the former manager of the Commercial and Industrial Section of the Office of the Director of Assessments of Allegheny County was restricted under Section 3 (g) of the Ethics Law from representing a person not only before that body but also the County Board of Property Assessment, Appeals and Review. Based upon the clear language of the Ethics Law with its accompany definitions, the legislative intent and the prior precedent of this Commission under Act 9 of 1989, we conclude that the governmental body of Ms. Sirolli is DPW. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Accordingly, the Advice of Counsel is affirmed. IV. Conclusion: The Division Director of the Case Management Program in the Department of Public Welfare (DPW) is a public employee subject to the provisions of the Ethics Law. Upon termination of service, the Ms. Nancy Sirolli Page 9 director would be restricted for a period of one year from representing a person before the former governmental body, DPW. The Advice of Counsel is affirmed. Pursuant to Section 7(9)(i), this Opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the advice given. 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 person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By th Commission, lena G. Hughes Chair