HomeMy WebLinkAbout94-581 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 17108 -1470
TELEPHONE,(717) 783 -1610
ADVICE OF COUNSEL
June 22, 1994
94 -581
Re: Conflict, Public Official /Employee, Executive Level Employee,
Involvement with Business Which Offers Position of Employment.
This responds to your letter of June 10, 1994 in which you
requested confidential advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any prohibition or restrictions upon A in B from accepting
an offer to employment from an entity.
Pacts: You request a confidential advisory as to whether the
Ethics Law would permit you to accept employment with C
organizations, when you have completed your governmental service.
As A in B your duties include responsibility for coordinating
all policies relating to health care reform including the
development of legislation, the most significant piece of which was
the B's proposed D. You played a key role in the development and
passage of the E in 1993. You have been involved with various
policy issues being addressed by F and G including the development
of G's request for proposals for a program called H which will
enroll all I in the J area into K. You have formally recused
yourself from further involvement in the request for proposal (RFP)
process since L.
In addition to the above you serve as a member of M which
represents N and provides benefits by contracting with 0 and C.
• You also serve on P as B's representative and are active on Q which
deals with issues affecting R. From S you have served as B's
appointee to T.
As of this date you have not received any formal offers of
employment, nor have you sought, negotiated or entered into any
agreements for employment and have carried out your duties as a
member of B's staff in strict accordance with the U and applicable
Confidential Advice, 94 -581
June 22, 1994
Page 2
ethics laws. Since you anticipate that .
return to the V at the end of governmental
to whether you may accept employment with
W organizations that are currently or may
business with X.
you will be seeking to
service, you inquire as
C organizations such as
be in the future doing
Discussion: As A in 2, you are a public official /employee as that
term is defined under the Ethics Law, and hence you are subject to
the provisions of that law. In addition, you are an executive -
level state employee as that term is defined under the Ethics Law,
infra and subject to the requirements of Section 3(i), infra.
Section 3(a) of the Ethics Law provides:
Section 3. Restricted Activities.
(a) No public official or public
employee shall engage in conduct that
constitutes a conflict of interest.
The following terms are defined in the Ethics Law as follows:
Section 2. Definitions.
"Conflict or conflict of interest." Use
by a public official or public employee of the
authority of his office or employment or any
confidential information received through his
holding public office or employment for the
private pecuniary benefit of himself, a member
of his immediate family or a business with
which he or a member of his immediate family
is associated. "Conflict" or "conflict of
interest" does not include an action having a
de minimis economic impact or which affects to
the same degree a class consisting of the
general public or a subclass consisting of an
industry, occupation or other group which
includes the public official or public
employee, a member or his immediate family or
a business with which he or a member •of his
immediate family is associated.
"Authority of office or employment." The
actual power provided by law, the exercise of
which is necessary to the performance of
duties and responsibilities unique to a
particular public office or position of public
employment.
•
Confidential Advice, 94 -581
June 22, 1994
Page 3
"Executive -level State employee." The
Governor, Lieutenant Governor, cabinet
members, deputy secretaries, the Governor's
office staff, any State employee with
discretionary powers which may affect the
outcome of a State agency's decision in
relation to a private corporation or business
or any employee who by virtue of his job
function could influence the outcome of such a
decision.
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 judgment of public official /employee would be
influenced thereby.
Section 3(i) of the Ethics Law provides:
Section 3. Restricted Activities
(i) No former executive -level State
employee may for a period of two years from
the time that he terminates his State
employment be employed by receive compensation
from, assist or act in a representative
capacity for a business or corporation that he
actively participates in recruiting to the
Commonwealth of Pennsylvania or that he
actively participated in inducing to open a
new plant, facility or branch in the
Commonwealth or that he actively participated
in inducing to expand an existent plant or
facility within the Commonwealth, provided
that the above prohibition shall be invoked
only when the recruitment or inducement is
accomplished by a grant or loan of money from
the Commonwealth to the business or
corporation recruited or induced to expand.
Under Section 3(&) of the Ethics Law quoted above, a public
employee may not use the authority of office or' confidential
information to obtain a private pecuniary benefit for himself,
member of his family, or business with which he or a member of his
immediate family is associated.
As quoted above, Section 3(i) sets forth a specific
prohibition that a former executive level state employee for a
period of two years after termination of state employment may note
Confidential Advice, 94 -581
June 22, 1994
Page 4
be employed or receive any compensation nor may act in a
representative capacity for a business or corporation that the
former executive level state employee participated in recruiting.
It should be further noted that the above restriction specifically
applies to the situation where the recruitment is accomplished by
a grant or loan or money or a promise of a grant or loan or money
from the Commonwealth to the business or corporation recruited or
induced to expand. The intendment of the above provision of the
Ethics Act is to prohibit an executive level state employee from
obtaining employment or acting as a representative for various
businesses or corporations that were recruited or induced to
expand. Thus, Section 3(i) of the Ethics Act would restrict
employment for a two year period as to any business or corporation
if the redruitment or inducement was accomplished by a grant, loan,
money or promise of a grant, loan of money from the Commonwealth to
the business or corporation which was recruited or induced to
expand. Section 3(i) of the Ethics Act would not preclude
employment or representation of clients unless the above qualifying
condition of Section 3(i) is applicable.
In applying the proffered facts to Section 3(a) of the Ethics
Law, Section 3(a) would prohibit you from using the position or
emoluments of public office or confidential information to advance
an opportunity of private employment with C organizations. It is
e assumed for purposes of this advice that you have not
taken any such action. In addition, the authority of office may
'riot be used as a means of attempting to eliminate any potential
Competitors who would be competing with you for the position.
pepper, Opinion 87 -008. Therefore, subject to the qualifications
as noted above, Section 3(a) of the Ethics Law would not preclude
you from accepting the position with C organizations.
As to Section 3(i) of the Ethics Law, that provision of law is
applicable to you as an executive -level state employee. Section
3(i) would not restrict you from the position of employment with C
organizations provided you did not actively participate in
recruiting or inducing C organizations to open a new facility or
branch in the Commonwealth or participate in inducing C
organizations to expand an existing plant or facility that was
accomplished by a grant or loan of money from the Commonwealth to
C organizations that was recruited.or induced to expand.
Furthermore, you are advised that if public service is
terminated and the position with C..organizations is accepted, you
would become a former public official /employee subject to the
restrictions of Section 3(g) of the Ethics Law:
Section 3. Restricted activities.
(g) No former public official or public
Confidential Advice, 94 -581
June 22, 1994
Page 5
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.
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. 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.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which you are
associated upon termination of public service would be B including
but not limited to all departments under B and any boards and
commissions as to which you have been appointed or serve as B's
appointee or representative, hereinafter collectively referred to
as B. 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 state senator
but to the entire Senate as his former governmental body.
Therefore, within the first year after termination of public
service, Section 3(g.) of the Ethics Law would apply and' restrict
representation of persons or new employers vis -a -vis B.
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
Confidential Advice, 94 -581
June 22, 1994
Page 6
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 C.S. A.
1901, it is clear that the governmental body with which you are
associated is B.
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 under
Section 3(g) 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 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 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.
In addition, the term "Person" is defined as follows under the
Ethics Law:
Section 2. Definitions.
Confidential Advice, 94 -581
June 22, 1994
Page 7
"Person." A business, governmental body,
individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
The Commission, in Pop, o v_h,. Opinion S9 -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 documents presented
to B so long as you are not identified as the preparer. You may
also counsel any person regarding that person's appearance before
B. Once again, however, the activity-in this respect should not be
revealed to B. Of course, any ban under the Ethics Law would not
prohibit or preclude the making of general informational inquiries
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, the term "Person" is defined as follows under the
Ethics Law:
Confidential Advice, 94 -581
June 22, 1994
Page 8
Section 2. Definitions.
"Person A business, governmental body,
;individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
In confidential Opinion 93 -005, the Commission held. that
Section 3 precludes a former public official /employee from
Providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
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 Law has not been considered in that they do not involve an
interpretation of the statutes rules or codes relating to your
position with B, other than the Ethics Law.
Conclusion: As A for B, you are a public official /employee and
executive -level state employee subject to the provisions of the
Ethics Law. Subject to the qualifications noted above, Section
3(a) of the Ethics Law would not restrict you from accepting a
position with C organizations which was offered after you performed
or completed your service in B. If the conditions of 3(i) apply,
that Section would restrict your activities as set forth above.
Should you terminate service, you must comply with the restrictions
of Section 3(g) as a former public official /employee. Lastly, 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 requestor has disclosed truthfully all
the material facts and committed the apts complained of in reliance
on the Advice given.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may appeal the Advice to the full
Confidential Advice, 94 -581
June 22, 1994
Page 9
Commission. A personal appearance before the Comknissicin
scheduled and a formal Opinion will be issued by the Corn mississil be
ion.
Any such appeal must be ^ in - writing and must be a
receiveg at the Commission within fifteen (15) days of the date of
Advice pursuant to -51 Pa.Code §13.2(h). of this
at the Commission by hand delivery, United apeal may be received
service, or by FAX transmission ( Fa mail delivery
an appeal at the Commission within fifteen (15) a s may o es result such
Y y
dismissal of the appeal, lt in the
noerely,
Vincent . Dopko
Chief Counsel