HomeMy WebLinkAbout91-524 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
March 18, 1991
91 -524
Re: Former Public Employee; Section 3(g); Committee A; Senior
Analyst, Team Leader.
This responds to your letter of February 13, 1991, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law presents
any restrictions upon your employment following termination of
service with Committee A.
Facts: As a Senior Analyst with Committee A, you are considering
future employment opportunities as a lobbyist and you have requested a
confidential advice regarding any restricted activities that may be
applicable under the Public Official and Employee Ethics Law. You
have submitted your job description for your present position as a
Senior Analyst with a working title of Team Leader, which job
description is incorporated herein by reference. Committee A is a B
of the Pennsylvania General Assembly. As a legislative service
agency, Committee A performs, in part, research activities pertaining
to the operation and performance of state government agencies and
programs. You have been employed as a staff member of the Committee
for 1 and 1/2 years during which time you have contributed to two
studies - a performance evaluation of the C and a study of D. .Since
joining the staff of Committee A, with the exception of testimony
delivered before the Committee regarding the C evaluation, you have
not directly or indirectly communicated with any Committee A members
or any other members of the Pennsylvania General Assembly. Any direct
correspondence from your office to committee members is under the
signature of the executive director. In addition, reports that are
issued by your office are issued under the signature of the committee
members. You pose the following specific questions:
1. Whether, given your present position, you will be restricted
from lobbying members of - the Pennsylvania General Assembly
Page 2
fora period of one year pursuant to Section 3(g) of the
Ethics Law;
2. If, given your current position, you would be restricted .
from lobbying the Pennsylvania General Assembly for a period
of one year, whether you would be restricted from direct
contact with Committee A members only or the entire
membership of the General Assembly;
3. Whether there are any restrictions, given your employment
situation, to directly lobbying the Pennsylvania
Congressional Delegation in Washington D.C. immediately upon
assuming a lobbying position; .
4. Whether, if you accepted a lobbying position that was
considered a state position (you specify E affiliated with.
F) those circumstances would impact differently in any way
on potential lobbying activities with the Pennsylvania
General Assembly; and
5. If you are restricted for a period of one year from lobbying
the Pennsylvania General Assembly whether you could still
have access to reports /documents (bills, legislative
calendars, etc.) that are available to the general public
and whether you could attend budget and public hearings.
Discussion: As a Senior Analyst with a working title of Team Leader
for Committee At 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.
Section 402; 51 Pa. Code Section 1.1. This conclusion is based upon
the job description, 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.
Consequently, upon termination of public service, 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:
Sectican.._.3 :..Restricted activities.
( §, Me fewer public official or public
eiaplt ee shall Mite@ent a parson, with promised
or e e a e sabio , on an Better before the
Yff
g6 i te1 B ody with which h fl e has been
ads §6didted €or erfte year after he leaves that. body.
Page 3
Initially, to answer your request the governmental body with
which you have associated while working with Committee A 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:
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.
In applying the above definition to the instant matter, we must
conclude that the governmental body with which you have associated
upon termination of public service would be the Pennsylvania General
Assembly which would be deemed to include Committee A as a B of the
General Assembly. The above is based upon the language of the Ethics
Law, the legislative intent (Legislative Journal of House, 1989
Session, No. 15 at 290, 291) and the prior precedent of this
Commission. Thus, in Sirolli, Opinion 90 -006, the Commission found
that a former Division Director of the Department of Public Welfare
(DPW) was not merely restricted to the particular Division as was
contended but was in fact restricted to all of DPW regarding the,one
year representation restriction. Similarly in Sharp, Opinion 90-
009-R, it was determined that a former legislative assistant to a
state senator was not merely restricted to that particular senator but
to the entire Senate as his former governmental body.'
Therefore, within the first year after termination: of service .
with the Pennsylvania General Assembly, Section 3(g) of the Ethics Law
would apply and restrict representation of persons or new employers
vis -a -vis the Pennsylvania General Assembly.
It is noted that Act 9 of 1989 significantly broadened the
definition of the term "governmental body with which a public
official or public employee is or has been associated." It was the
specific intent of the General Assembly to define the above term so
that it was not merely limited to the area where a public
official /employee had influence or control but extended to the entire
governmental body with which the public official /employee was
associated. The foregoing intent is reflected in the legislative
debate relative to the amendatory language for the above term:
F..
Page 4
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..."
Legislative Journal of House, 1989 Session, No. 15
at 290, 291.
Therefore, since the Ethics Law must be construed to ascertain
and effectuate the intent of the General Assembly under 1 Pa. C.S.A.
1901, it is clear that the governmental . body with which you have
associated is the Pennsylvania General Assembly which would be . deemed
to include Committee A as a B of the General Assembly. This is
particularly true given Committee A's work together with the G
pursuant to Act- H, and its work with the various standing committees
of the General Assembly, in determining whether certain state
governmental agencies are operating effectively and in the public
interest.
Turning now to the scope of the restrictions under Section 3(g),
the Ethics Law does not affect one's ability to appear before agencies
kor- 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
public trust. The intent of the law generally is that during the term
z' 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 obtainable only because of
his assodiation with his former governmental body.
In respect to the one year representation, the Ethics Law
defines "Represent" as follows:
Section 2. Definition
"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.
In addition, the term "Person" is defifned:as follows under the
Ethics Law:
- Page 5
Section 2. Definitions.
"Person." A business, governmental b ody,
individual, corporation, union, association, firm,
partnership, committee, club or other organization
or group of persons.
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, including, but not limited to, negotiations or renegotiations
in general or as to contracts;
2. Attempts to influence;
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 former governmental
body as to acting on behalf of a person;
5. Lobbying, that is representing the interests of any person
or employer before the former governmental body 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 former
governmental body constitutes an attempt to influence the former
governmental body. Therefore, within the first year after
termination of service, you should not engage in the type of activity
outlined above.
You may, assist in the preparation of any documentspesented to
your former governmental body so long as you are not idenflfied_as the
preparer. You may also counsel any person regarding that, person's
appearance before your former governmental-body, - Once again, however,
the activity in this respect should not be revealed to .your. former
governmental body. Of course, any ban under the Ethics taw would not
prohibit or preclude the making of general informational inquiries of
your former governmental body to secure information which is available
to the general public. This must not be done in an efort to
indirectly influence the former governmental body or to otherwise make
known to that body the representation of, or work for the new
employer.
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 and no
public official /employee shall solicit or accept any thing of monetary
Page
value based upon the understanding that the vote official action, or
judgement of the public official /employee would be influenced thereby.
Reference is made to these provisions of the law not to imprly:that
there has or will be any transgression thereof but merely to provide a
complete response to the question presented.
In applying the above provisions of the Ethics Law to your
specific inquiries, your first specific inquiry asks whether, given
your present position, you would be restricted as a former public.
employee from lobbying members of the Pennsylvania General Assembly
for a period of one year pursuant to Section 3(g) of the Ethics Law.
Since your governmental body is considered to be the General Assembly
and not just Committee A, you would indeed be prohibited from lobbying
members of the Pennsylvania General Assembly for a one year period
following termination of public employment under the restrictions of
Section 3(g) of the Ethics Law.
In answer to your second specific inquiry, based upon the
authorities discussed above, the restrictions of Section 3(g) of the
Ethics Law would be applicable with regard to the entire membership of
the Pennsylvania General Assembly, and would not be limited to
Committee A members.
In answer to your third specific inquiry, the Ethics Law does not
present any restrictions or prohibitions upon you with regard to
lobbying the Pennsylvania Congressional Delegation in Washington D.C.
immediately upon assuming a lobbying position. This is because the
Pennsylvania Congressional Delegation in Washington D.C. as federal
officials would not be your former governmental body.
Your fourth specific inquiry is whether, if you accepted a
lobbying position that was considered a state position (specifically E
affiliated with F), those circumstances would impact differently on
potential lobbying activities with the Pennsylvania General Assembly.
Generally, the Commission has considered the applicability of the
restrictions of former Section 3(e) of former Act 170 of 1978 upon
Commonwealth employees who left their positions to accept other
governmental positions. Heverling, Advice 88 -540, contains ..a review
of prior Ethics Commission decisions in this regard. Although the
prior decisions of the Commission under former Act 170 of 1978 are not
controlling in cases under Act 9 of 1989, the reasoning which the
Commission has invoked in those prior cases may be applicable to cases
under Act 9 of 1989. Generally speaking, under the prior reasoning of
the Commission, the legislative intent with regard to present Sectiea
3(g) of Act 9 would be deemed to have been 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: See, .Heverling,
Advice 88 -540 at 3., The .Commission in such prior determinations has
concluded that. former public employees had no restrictions on their
ability to represent their new aayernment emp:o cs or entities before
Page 7
the body with which they had formerly been associated.. Id. The
Commission has also previously determined that it was permissible
under former Section 3(e) of Act 170 for an individual to transfer
from one position in a branch of the Commonwealth to another position
in the same branch or to transfer from one branch to another branch of
Commonwealth service. Id. In one case, the Commission determined
that a former administrative law judge of the PUC could participate in
PUC hearings within the year following the termination of his
employment with that body. Id.
While the reasoning of these prior decisions would be generally
applicable to a situation where you would accept new governmental
employment, the specific instance you pose would be an exception
under a prior Commission decision. In McQuaide, Opinion 80 -043, the
Commission held that members of the board of trustees and employees of
E are not public officials /employees under the Ethics Law.
Applying the reasoning of these prior Commission decisions under
former Act 170 to your fourth specific inquiry, if you left your
present state employment to accept another position of public
employment with the state, the prohibitions of present Section 3(g) of
the Ethics Law would generally not apply to you. However, in the
specific example you have posed of being a lobbyist with E affiliated
with r, the restrictions of Section 3(g) would apply to you under the
McQuaide holding.
In answer to your fifth and final specific inquiry, those who are
subject to the restrictions of Section 3(g) of the Ethics Law are
still permitted to make general informational inquiries of their
former governmental bodies to secure information which is available to
the general public. Under this same reasoning, the restrictions of
Section 3(g) would not specifically prohibit attendance at hearings
which are open to the general public, as a member of the general
public and not in any representative capacity. However, such
informational inquiries and /or attendance at public hearings 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. Attendance at hearings which are not open
to the general public would be prohibited.
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 othet code of conduct other
than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusions As a Senior Analyst with a working title of Team Leader
for Committee A, you are to be considered a "public employee" as
defined in the Ethics Law. Upon termination of service with
Committee A, you would become a "former public employee" subject to
Section 3(g) of the Ethics Law. The former governmental body is the
Page 8
Pennsylvania General Assembly, which would be deemed to include
Committee A. If you leave governmental employment, you would be
reet=oted from lobbying members of the Pennsylvania General Assembly
foY al period of one year pursuant to Section 3(g) of the Ethics Law.
The ptohibitions of Section 3(g) as set forth -above would apply with
reset to the entire membership of the General- Assembly and not
mere* the members of Committee A. The Ethics Law would not present
an "prohibitions or restrictions with regard to your directly lobbying
tt pennsyvania Congressional Delegation in Washington D.C.
iuhediatehy'upon assuming a lobbying position. If you accepted a new
pc5ditiodl that was considered public employment by' the State, the
ziest - iOt- ons of Section 3(g) of the Ethics Law would generally not
4101' to' you with regard" to your new governmental position. However,
nnd4f HcOuaide, Opinion 80 -043, if you were to accept employment as a
160b1 t with-regard to E affiliated with F, the restrictions of
Set ofi 3(g) of the Ethics Law would apply to you Those who are
s-ublect to the restrictions of Section 3(g) of the Ethics Law are not
proh or precluded from making general informational inquiries of
a' fatmer` governmental body to secure information which is available to
the general public, and attendance " at-hearings which are open to the
public, at a member of the general public and not in any
representative capacity, would similarly be permitted. However, such
informational inquiries and /or attendance at public hearings 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. If you leave governmental employment, the
restrictions as to representation outlined above must be followed.
¶he: propriety of the proposed conduct has only been addressed under
the .Ethics Law.
Further, as long as you meet the definition of "public employee"
as set forth in the Ethics Law and the regulations of this Commission,
you must meet the filing requirements for Statements of Financial
Interests set forth in 65 P.S. SS404 and 405. 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(11), 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
Page 9
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 days of the date of this Advice pursuant to 51
Pa. Code S242.
Sinperely,
Vincent . Dopko,
Chief Counsel