HomeMy WebLinkAbout89-586 RigneyMr. John C. A. Rigney, Jr.
460 Kenwood Road
Drexel Hill, PA 19026
STATE ETHICS COMMISSION
308 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108-1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
November 30, 1989
89 -586
Re: Former Public Employee; Section 3(g); Department of Banking;
Field Examiner
Dear Mr. Rigney:
This responds to your letter of October 15, 1989, in which
you requested advice from the State Ethics Commission.
Issue: You ask whether the Ethics Law presents any restrictions
upon your employment following your termination of service with
the Department of Banking.
Facts: You have been an examiner in the Saving Association
Bureau of the Department of Banking since 1958 and have served as
a supervisor in the Philadelphia Office between 1968 and 1988 at
which time you were transferred to the newly created Bureau of
Examinations as a field examiner to conduct examinations of
various financial institutions in the Eastern District. Having
achieved normal retirement age for the Commonwealth, you are
considering taking a pension since you will also be eligible for
Social Security in January 1990. You state however that you are
not ready for social security and would like to take a position,
if so offered, as President of the Pennsylvania Savings
Association Insurance Corporation (PSIAC). PSIAC is a private
company which insures savings accounts of approximately fifty
small S & L Associations in .Pennsylvania and is subject to
regulation by the Department of Banking. The position of
President of PSAIC became available at the end of September and
if you were employed to. fill the vacancy, it is possible that
your duties )might require your representation of PSAIC before the
Department of Banking. After noting the one year restriction as
to former public•officials /employees under the Ethics Law, you
note that your supervisors told you that you were a public
Mr. ,John C. A. Rigney, Jr.
Page 2
employee back in 1979 but you protested on the theory that your
actions were "ministerial ". You argue that your actions are now
definitely ministerial in light of your realigned duties and
responsibilities with the new Bureau of Examinations. Since you
desire that PSAIC be apprised of whether the Ethics Law would
impose a one year restriction upon you as a former public
employee, you seek an opinion from the Commission on this matter.
Discussion: As a Field Examiner for Bureau of Examination for
the Department of Banking, you are to be considered a "public
employee" within the definition of that term as set forth in the
Public Official and Employee Ethics Law and the Regulations of
this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This
conclusion is based upon the job description /classification
specification, which when reviewed on an objective basis,
indicates clearly that the power exists to take or recommend
official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting, administering or
monitoring grants, leasing, regulating, auditing or other
activities where the economic impact is greater than de minimus
on the interests of another person. In addition, your duties and
responsibilities as a field examiner fall within the definition
of public employee contained in the regulations of the Commission
at subparagraph (i)(B)(I)(a) under the definition of Public
Employee found at 51 Pa. Code S1.1.
Consequently, upon termination of employment, you would
become a "former public employee" subject to Section 3(g) of the
Public Official and Employee Ethics Law. Section 3(g) of the
Ethics Act provides that:
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 . with
which he has been associated for one year
after he leaves that body. 65 P.S. §402.
Initially, to answer your request the governmental body
with which you were associated while working with the Department
of Banking must be identified. Then, the scope of the
prohibitions associated with the concept and term of
"representation" must be reviewed.
The term "governmental body with which a public official or
public employee is or has been associated" is defined under the
Ethics Law as follows:
Mr. John C. A. Rigney, Jr.
Page 3
Section 2. Definitions.
"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 P.S. §402
Thus, the governmental body with which you have been
associated upon the termination of employment would be Department
of Banking, hereinafter the Department. Therefore, within the
first year after termination of service with'the Department,
Section 3(g) of the Ethics Law would apply and restrict
representation of persons or new employers vis -a -vis the
Department.
The Ethics Law does not affect one's ability to appear
before agencies or entities other than with respect to the former
governmental body. Likewise, there is no general limitation on
the type of employment in which a person may engage, following
departure from their governmental body. It is noted, however,
that the conflicts of interest law is primarily concerned with
financial conflicts and violations of the p'_ihlic trust. The
intent of the law generally is that during the term of a person's
public employment he must act consistently with the public trust
and upon departure from the public sector, that individual should
not be allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer,
treatment or benefits that may be obtainable only because of his
association with his former public employer.
In respect to the one year representation the Ethics Law
defines "Represent" as follows:
Section 2. 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.
65 P.S. §402.
Mr. John C. A. Rigney, Jr.
Page 4
In addition, the term "Person" is defined as follows under
the Ethics Law:
Section 2. Definitions.
"Person." A business, governmental
body, individual, corporation, union,
association, firm, partnership, committee,
club or other organization or group of
person=s. 65 P.S. §402.
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
1. .Personal appearances before the former governmental body
or bodies, (that is the Department), including, but not limited
to, negotiations or renegotiations in general or as to contracts
with the Department;
2. Attempts to influence the Department;
3. Submission of bid or contract proposals which are signed
or contain the name of the former public official /employee.
4. Participating in any matters before the Department over
which there was supervision, direct involvement, or
responsibility while employed by that governmental body;;
5. Lobbying, that is representing ? the interests of any
person or employer before the Department in relation to
legislation, regulations, etc.
The Commission has also held that listing one's name as the
person who will provide technical assistance on: such proposal,
document, or bid, if submitted to or reviewed by the Department
constitutes an attempt to influence the former governmental body.
Therefore, within the first year after termination of service,
you shduld not engage in the type of activity outlined above.
The Commission, however, has stated that the inclusion of one's
name as an employee or consultant on a "pricing proposal," even
if submitted to or reviewed by the Department, is not prohibited
as representation.
You may, assist in the preparation of any documents
presented to the Department so long as you are not identified as
the preparer. You may also counsel any person regarding that
person's appearance before the Department. Once again, however,
the activity in this respect should not be revealed to the
Department. Of course, any ban under the Ethics Law would not
Mr. John C. A. Rigney, Jr.
Page 5
prohibit or preclude the making of general informational
inquiries of the Department to secure information which is
available to the general public. This, of course, must not be
done in an effort to indirectly influence these entities or to
otherwise make known to the governmental body the representation
of, or work for the new employer.
Finally, the Commission has concluded that the
administering of an existing contract as opposed to negotiating
or renegotiating a contract would not be prohibited by the
Ethics Law.
In addition, Sections 3(b) and 3(c) of the Ethics Law
provide in part that no person shall offer to a public
official /employee anything of monetary value or no public
official /employee shall solicit or accept any thing of monetary
value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; 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.
Conclusion: As a Field Examiner for the Bureau of Examinations
in the Department of Banking, you are to be considered a "public
employee" as defined in the Ethics Law. Upon termination of
service .. with the Department, you would become a "former public
employee" subject to the restrictions imposed by Section 3(g) of
the Ethics Law. As such, your conduct should conform to the
requirements of the Ethics Law as outlined above. The propriety
of the proposed conduct has only been addressed under the Ethics
Law.
Further, should service be terminated, as outlined above,
the Ethics Law also requires that a Statement of Financial
Interests be filed for the year following termination of
service.
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.
Mr..John C. A. Rigney, Jr.
Page 6
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 such appeal must be in writing
and must be received at the Commission within 15 days of the date
of this Advice pursuant to 51 Pa. Code 52.12.
Sincerely,
' ELAAn
Vincent J. Dopko,
Chief Counsel