HomeMy WebLinkAbout95-625 ConfidentialSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
December 1, 1995
95 -625
Re: Former Public Employee; Section 3(g); County Redevelopment
Authority; Deputy Director.
This responds to your letter of November 9, 1995 in which you
requested confidential advice from the State Ethics Commi
Jssue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of a former A following
termination of service with B.
Facts: In March, 1995 you resigned as A for B to accept a
posit :ion as Executive Director of C.
C, in conjunction with D County and B, seeks an exception to
the federal conflict provisions so that C may implement affordable
housing under- federal funds through E and F.
You resigned your position within the last 12 months from the
B which is the administering agent of D County, G, and F funds.
You seek a ruling to insure compliance with the Ethics Law and to
facilitate an opinion from the C counsel, all of which will be
included in a federal exception request.
In December, 1993, D County reserved $200,000 in E funds to be
administered by C. Additionally, $400,000 in F funds to support C
is also pending. These grants were established prior to your
employment with C.
The Authority now wishes to implement these programs with C
b}at a question of conflict exists due to your resignation from the
B within the last 12 months. The Executive Committee of C has had
and will continue to have primary responsibility for negotiation of
the proposed contract with B. You have withdrawn from all
conversations, contracts, and agreements with the B since changing
employment.
Confidential Advice of Counsel, 95 -625
December 1, 1995
Page 2
The contracts will primarily benefit housing consumers and
other non- profit developers who will receive assistance and
services from C on a not- for - profit basis. Less than 10% of the
grants will be used for C's administrative costs, including salary
and benefits for yourself ar.d other C staff. These costs are in
accordance with previously established rates of compensation and do
not involve the payment of bonuses, commissions, or other incentive
compensation.
piscu =sion: As a former A with B, 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 the Commission. 65 P.S. §402; 51 Pa. Code §11.1.
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
.Section 3. Restricted activities.
(g) No former public official or public
.employee shall represent a person, with
*promised or actual compensation, oxi any matter
before the governmental body with which he has
been associated for one year after he le
that body.
Initially, to answer your request the governmental body with
which you were associated while wording with the B 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
offic - ial 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 Tatter, we
must conclude that the governmental body with which you were
Confidential Advice of Counse , 95 -625
December 1, 1995
Page 3
associated upon termination of public service would be the 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 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
de- termined 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 B, 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 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.
were 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 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,
Confidential Advice of Counsel, 95 -625
December 1, 1995
Page 4
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 restriction against such
"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.
The Commission, in Popovigh, Opinion 89 -01)5, has also
interpreted the term ' "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
1. Personal appearances 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
by or contain the name of the former public offici -al /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.. In ,shay, Opinion 91-1)12, the Commission held
that Section 3 (g) would prohibit the inclusion of the name of a
former public official /public employee on invoices submitted by his
new employer to the former governmental .body, -even though•the
invoices pertained to -a contract which .existed prior to termination
of public service.. 'Therefore, within the first year after
termination of service, you should not engage in the type of
acti•vdty outlined. above.
You may .:assist in the preparation of. any .documents presented
to P. Eowever., you may not be identified on documents submitted to
Confidential Advice of Counsel 95 - 625
December 1, 1995
Page 5
B. 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 of B 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:
Section 2. Definitions.
"Person." A business, governmental body,
individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
In applying the definition of "Person" quoted above, the
Commission has held that the term includes a former public employee
representing himself in providing consulting services to his former
governmental body. Confidential Opinion 93 -005. Further, the term
"Person" includes a new government employer which is represented by
the former public employee before his former governmental employer.
Ledebur, Opinion 95 -007.
As to your case, you are advised that the Ethics Law does not
provide any exceptions as to the application of Section 3(g) or the
other restricted activities. Further, depending upon the process
between C and B, you could encounter logistical problems in such
activities without running afoul of Section 3(g). An example would
be if your name would have to be included on documents submitted to
your former governmental body.
Furthermore, 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 anything 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 been or will be any transgression
thereof but merely to provide a complete response to the question
presented.
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
Confidential Advice of Counsel`', 95' -625
December 1, 1995
Page 6
than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: As . a former A for B, . you are considered a "public
employee" as defined in the Ethics. Law. Upon termination of
service with the B, you would become a "former public employee"
subject to Section 3(g) of the Ethics Law. The former governmental
body is B. The restrictions as to representation outlined above
must 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 requestor has disclosed truthfully all
the material facts and committed the acts 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 Commission. A personal appearance
before the Commission will be scheduled and a formal
Opinion will be issued by the Commission.
Any such appeal must be in writing and must be
actually received at the Commission within thirty (30)
days of the date of this Advice pursuant to 51 Pa. Code
§13.2(h). The appeal may be received at the Commission
by hand delivery, United States mail, delivery service,
or by FAX transmission (717- 787 - 0806). Failure to file
such an appeal at the Commission within thirty (30) days
may result in the dismissal of the appeal.
erely,
Qj
incent %i� Dop
Chief Cou , -el