Loading...
HomeMy WebLinkAbout91-526 HarveySTATE ETHICS-COMMISSION 309 FINANCE BUILDING RO. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -161a ADVICE OF COUNSEL March 26, 1991 Mr. Samuel E. Harvey 91 -526 19 Hemlock Drive Mechanicsburg, PA 17055 Re: Former Public Employee; Section 3(g); Department of Environmental Resources, Bureau of Laboratories, Division of Organic Chemistry and Radiation Measurement; Chemist IV. Dear Mr. Harvey: This responds to your letter of February 21, 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 the. Department of Environmental Resources, Bureau of Laboratories, Division of Organic Chemistry and Radiation Measurement. Facts: As an employee of the Department of Environmental Resources, Bureau of Laboratories, Division of Organic Chemistry and Radiation Measurement, your present class title is "Chemist IV." You have submitted our y job description, which - "` job description is incorporated herein by reference. You have received furlough notification from the .Department of Environmental Resources, effective February 28, 1991. Noting that your separation from your employment with the'bepartment of Environmental Resources (DER) is not voluntary, you specifically inquire as to what effect this would have on the restrictions under the Ethics Law, and you ask what restrictions will apply to you. You note that you would like to be able to clarify your position to prospective employers. Discussion: - As a chemist with a .present ` class:title of "Chemist IV" for DER, Bureau of Laboratories, Division of Organic Chemistry and Radiation Measurement, you are tb be considered a "public employee" within the definition; of that term as forth in the Public Official and Employee Ethics Law and the Regulations of this Commission. 65 P 402; 51 Pa. Code - Section 1.1. This conclusion is based upon the job descriptiorr, which when reviewed on an objective basis, indicates clearly, that the power exists to take . or recommend official action a non - Mr. Samuel E. Harvey Page .2 ministerial nature with respect to contracting, procurement, planning, inspecting, administering or monitoring grants, leasing, .regulating, auditing or other activities where the eponomic 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 P'ublic 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 body with which he has been associated for one year after he leaves that body. Initially, to answer your request the governmental body with which you have associated while working with DER 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 .whjch 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 asseciated.. upon termination of publio service would be DER, including but not limited to-, the;. Bureau., of Laboratories and /or t Division Of Organic Chemxstd and Radiation Measurement. The e:' 'is ` based . upon, the language of. the Ethics.. Law, ; the '� ative Journa-1 of . Ho se, 1989_? Sessi t s`�at�.�rg intent t Lec,{,�. s �z 1$, at:. l j, 291) : and the prior;: precedent' of this Commission': In' 15 bill , Opinion 90 - the - Commission: found that & Mr. Samuel E. Harvey Page 3 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 DER, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DER. 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: 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 DER. 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 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 public 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 sedtoty In addition, the term "Person" is defined as follows under thee :Ethics Law: Section 2. Definitions. "Person." A business, governmental body, 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 publii -c official /employee; 4. Participating in any matters before the .former governmental body as to acting on behalf of ..a person; `5. :Lobbying, that its representing the (fnteren'ts rof a.Y pees ©h nor employer bef'o a the .former governmental 'body ?itn re a big itb regislation, regulations, etc. Mr. Samuel E. Harvey p age 4 offoiais 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 governmental body. 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. Mr. Samuel E. Harvey Page 5 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 documents presented to DER so . long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before DER. Once again, however, the activity in this respect should not be revealed to DER. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DER to secure information which is available to the general public. 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. 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 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 imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In answer to your specific inquiry, the above provisions and the restrictions of the Ethics Law would apply to you despite the fact that the termination of your employment would be by furlough rather than a voluntary termination. Section 3(g) of the Ethics Law does not carve out any exceptions based upon the reason for the termination of public employment. Lastly, the propriety of the proposed; oonduct 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 interpretatioK of the Ethics Law. Conclusion: As a chemist with a present class title of "Chemist IV" with the Department of Environmental Resources (DER), Bureau of Laboratories, Division of Organic Chemistry and Radiation Measurement, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DER, you would become a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is Xt. Samuel E. Harvey Page 6 DER, including but not limited to the Bureau of Laboratories and /or the Division of Organic Chemistry and Radiation Measuremeft. The restrictions as to representation outlined above moat be followed. 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(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 requester 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 such appeal must be in writing and 'must be received at the Commission within 15 days of the date of Advice pursuant to 51 Pa. Code 52.12. Sincerely, Vincent J. Dopko, Chief Counsel