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HomeMy WebLinkAbout92-605Ms. Amy J. Leader 160 Sharon Drive York, PA 17403 Re: Former Public Employee; Section 3(g); Director of Office of Federal and State Relations; Legislative Liaison 3; Department of Public Welfare. Dear Ms. Leader: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1 610 ADVICE OF COUNSEL June 18, 1992 92 -605 This responds to your letter of May 22, 1992, in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any restrictions upon employment of the Director of the Office of Federal and State Relations following termination of service with the Commonwealth of Pennsylvania, Department of Public Welfare. Facts: As the Director of the Office of Federal and State Relations for the Commonwealth of Pennsylvania, Department of Public Welfare (DPW), you request an advisory from this Commission regarding your dutues under the Ethics Law. You describe your job duties as being responsible for monitoring legislation affecting DPW in the Commonwealth Legislature and Congress; working with the State House and Senate members and staff on departmental bills and inquiries; working with the Governor's Legislative Secretary and the Governor's Washington Office; and assisting the Secretary of Public Welfare on legislative matters. Your position reports directly to the Secretary of Public Welfare. You have accepted a position as State Government Relations Manager with Hershey Foods Corporation within its Governmental Relations Office. In that position you will be responsible for working with the legislatures in all fifty states, when appropriate, on issues pertinent to the corporation. You do not anticipate having direct contact with DPW but state that you may want to maintain relations with persons in other state agencies and members of the Governor's staff. You specifically inquire as "to whether your prospective Ms. Amy d' . Leader - June 18, 1992 Page 2 position of employment with Iiershey Foods Corporation would result in a violation of state statute. Pr the regulations of this Commission. You inquire as to what activities, if any, you must refrain from performing to avoid being in violation of the law. A copy of your job description, job classification been and organizational chart have een obtained from DPW, all of which documents are incorporated herein by reference. It is noted that in your present position with DPW, you are classified as a Legislative Liaison 3. Discussion: As the Director of the Office of Federal and State Relations for the Commonwealth of Pennsylvania, Department of Public Welfare (DPW), 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. 5402; 51 Pa. Code 51.1. This conclusion is based upon the job description, which when reviewed on an objective basis t 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 minimis 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: 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 been associated while working with DPW 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 1.2V-on Definitions, Ms. Amy J. Leader June 18, 1992 Page 3 "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 would be associated upon termination of public service would be DPW in its entirety, including but not limited to the Office of Federal and State Relations.' 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 DPW, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis DPW. 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 Ms. Amy J. Leader June 18, 1992 Page 4 and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 51901, it is clear that the governmental body with which you have been associated is DPW in its entirety, including but not limited to the Office of Federal and State Relations. 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, 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. 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. 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 Xs. Amy J. Leader June 18, 1992 Page 5 renegotiations in general or as to contracts 2. Attempts to influence; 3. Submission of or contract proposals which are signed by 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. In Shav, Opinion 91 -012, 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 activity outlined above. You may assist in the preparation of any documents presented to DPW. However, you may not be identified on documents submitted to DPW. You may also counsel any person regarding that person's appearance before DPW. Once again, however, the activity in this respect should not be revealed to DPW. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of DPW 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 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 transgressien thereof but merely to provide a complete response to the question presented. Lastly, the propriety of the proposed conduct has only been Ms. Amy J. Leader June 18, 1992 Page 6 - addressed under the Ethics Law; the applicability of any other statute, code, ordinance, regulation or other code cf - conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As the Director of the Office of Federal and State Relations for the Commonwealth of Pennsylvania, Department of Public Welfare (DPW), classified as a Legislative Liaison 3, you are to be considered a "public employee" as defined in the Ethics Law. Upon termination of service with DPW, you would become a "former public employee" subject to Section 1(g) of the Ethics Law. The former governmental body is DPW in its entirety, including 'but not limited to the Office of Federal and State Relations. 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 Ehics Law also requires that a Statement of Financial Interests be tiled 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 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 S2.12. Sincerely, () - Vincent . Dopko Chief Counsel