Loading...
HomeMy WebLinkAbout88-540 HeverlingSTATE ETHICS COMMISSION 308 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783- 1610 April 6, 1988 ADVICE OF COUNSEL Mr. Jeffrey M. Heverling Office of Consumer Advocate 88 -5 40 1425 Strawberry Square Harrisburg, PA 17120 Re: Former Public Employee, Public Utilities Commission, Office of Consumer Advocate Dear,Mr. Heverling: - This responds to y6Gr letter of February 29, 1988 wherein you re ues advice from the State Ethics Commission. q ted Issue: Whether the State Ethics Act presents any prohibitions or r upon a Financial Analyst in a estrictions r after he leaves that governmental body btootakeha positiontwithythemOfficen of Consumer Advocate. Facts: You state that you were employed by th Pennsylvania Public Util" Commission (PUC) as a Financial Analyst from July of 1984 until. your 1ty resignation on September 1, 1987. After listing your duties and responsibilities in the PUC which included analyzing and reviewing of tax and accounting issues, advising the PUC on issues and cases, participating in discovery, preparing and submitting of testimony and assisting PUC trial counsel in the preparation of briefs in rate cases you 2, 1987, you were appointed to a staff position with the nOfficeaofoConsumerber Advocate (OCA). You then state that the PUC regulates all investor -owned public utilities by setting rates which are charged to utility customers, by assuring reliable and adequate service to customers, by insuring compliance with the PUC Code and Regulations and by developing policy which is in the public interest. Thereafter you note that the OCA is an independent office within the Office of Attorney General which is charged with the duty ar.° responsibility of representing the interests of Utility customers. Jeffrey M. Heverling April 6, 1988 Page 2 After setting forth your analysis of Section 3(e) of the Ethics Act relative to the terms "former public employee" and "person," as it relates to the concept representation for the one -year period following termination of governmental service, you cite several opinions of the Commission and conclude by expressing your view that Section 3(e) would not restrict your before the PUC or other forums on the theory that you are neither a public employee and the OCA is not a person as defined under the Ethics Act. You conclude by requesting advice as to whether your appearance before the PUC within one year in the change of your employment would transgress the provision of Section 3(e) of the Ethics Act. Discussion: As Financial Analyst within the PUC, you "public employee" within the definition of that term asesettforthcinstheered a Ethics Act and the 'regulations of this Commission. See 2 of Ethics Act, 65 P.S. 402 and the regulations of the Commission Section forth 51 Pa. Code 1.1. This conclusion is based upon your job description, which when reviewed on an objective basis, indicates clearly - that you have the power to take or recommend official action of a non - ministerial nature with respect to contracting, procurement, planning, inspecting or other activities where the economic impact is greater than de minimus on the interests of another person. Consequently, upon termination of this employment or service become a "former public employee" subject to Section 3(e) of the Ethics Act. Section 3(e) of the Ethics Act provides that: Section 3. Restricted activities. (e) No former official or public employee shall represent a person, with or without compensation, on any matter before the governmental body with which he has been associated for one year after he leaves that body. 65 P.S. 403. Generally, in a request of this nature, the Commission would attempt to identify with specificity the governmental body with which you were associated while serving with the PUC. In this context, the Ethics Commission has previously ruled that the "governmental body" with which an individual may be deemed to have been associated during his tenure of public office, or employment extends to those entities where he had influence, responsibility, supervision, or control. See _E_w_i_ng, Opinion 79 -010. Se also Kur vs. Commonwealth of Penns lvania State Ethics Commission, 435 A.2d 940 1 1 . Jeffrey M. Heverling April 6, 1988 Page 3 Although it does not appear that your jurisdiction, responsibility, influence and control extended to the entire PUC, this issue, however, need not be addressed at any length in light of the particular circumstances involved herein as set forth below. Generally, the restrictions set forth in the Ethics Act prohibiting "representation" of persons before one's former governmental body must be qualified by the definition set forth in the Act and the legislative intendment. Person is defined in the State Ethics Act, as a "business, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. in this case where you are leavin See 65 P.S.- However, a new position with another governmental entity employment (PUC) and assuming the same restrictions as to "representation" would Cbe�applicable�on is whether In this respect the Commission has previously issued opinions which indicate that the legislative intent was to prohibit the representation of persons in circumstances that may give rise to a conflict, that is,where the government employees or officials leave the public sector and enter the private sector. In two cases, Hagan, Opinion 84 -019 and Pinto, Opinion 84 -021, the Commission determined that former public employees had no restrictions on their ability to represent their new government employers or entities before the body with which they had formerly been associated. The Commission's conclusion was primarily based upon the fact that where the post - Commonwealth employment is with another governmental body or entity, the concerns the legislature sought to address through Section 3(e) of the Ethics Act were allayed or reduced because the new governmental employer could not be expected to seek to influence the governmental body, formerly served by these individuals, in the same manner as a non governmental employer would. Therefore, the Commission concluded that the restrictions of Section 3(e) of the Ethics Act would not be applicable in such circumstance. The Commission has determined that it is permissible under Section 3(e) of the Ethics Act for an individual to transfer from one position in a branch of the Commonwealth to another position in the same branch. Cohen, Opinion 79 -045. The Commission has also determined that a transfer of a public employee from one branch of the Commonwealth service to another branch would not transgress the provisions of Section 3(e). Opinion 84 -017. In particular, the Commission dete d pinion 80 -040, that a former administrative law judge of the PUC, within a year after he left that body, could participate in PUC hearings which resulted from letters, protests or by formal complaints filed by that individual or others. Jeffrey M. Heverling April 6, 1988 Page 4 In applying the above rulings to your case, it must be concluded that when you left the PUC to secure new employment with the OCA, you became a "former public employee." However, for the reasons set forth in the opinions cited above, Section 3(e) of the Ethics Act would not restrict your ability to represent the OCA before the PUC. Similarly, Section 3(e) of the Ethics Act would not restrict your representation of the OCA before other forums. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act; the applicability of any other statute, code, trdinance, regulation or other code of conduct other than the Ethics Act has not been considered in that they do not involve an interpretation of t% Ethics Act. Conclusion: Upon termination of your service with the PUC, you would become a "former public employee," but for the reasons set forth above, Section 3(e) of the Ethics Act does not restrict your ability to represent" the OCA before the PUC or other forums. The propriety of your conduct has only been addressed under the Ethics Act. Pursuant to Section 7(9)(ii), this 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, providing 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 request that the full Commission review this Advice. A personal appearance before the Commission will be scheduled and a formal Opinion from the Commission will be issued. Any writing, to the Commission within 15 days of service hofpthis Adviceepursuntn to 51 Pa. Code 2.12. VJD /jkc Si cerely, Vincent Dopko General Counsel