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HomeMy WebLinkAbout92-609Dear Mr. Brooks: STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL June 25, 1992 Mr. Benjamin F. Brooks 92 -609 Major Ben's Consulting 3900 Greenwood Boulevard Harrisburg, PA 17109 Re: Former Public Employee; Section 3(g); Major; Pennsylvania State Police. This responds to your letter of May 28, 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 a Major following termination of service with the Pennsylvania State Police. Facts: As a former Major with the Pennsylvania State Police, you request an advisory from this Commission.. On January 3, 1992, you retired from the Pennsylvania State Police where you served as a Major in Affirmative Action /Contract Compliance. During your last four years of service, you were involved in training police departments throughout Pennsylvania regarding affirmative action and sexual harassment. Since your retirement, you have established a consulting agency which teaches these subjects. You state that you know that you may not contract with the Pennsylvania State Police for one year following retirement. You specifically-inquire as to how the Ethics Law would restrict you in doing business with other municipalities, private companies, colleges and universities. Discussion: As a Major with the Pennsylvania State Police, you would 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 S1.1. This conclusion is based upon the fact that in your former position as a Major, you were not a rank and file officer but would have supervisory duties and other functions which would bring you within the definition of "public employee." Mr. Benjamin F. Brooks June 25, 1992 Page 2 Consequently, upon termination of public service, you became 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 the Pennsylvania State Police 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 been associated upon termination of public service would be the Pennsylvania State Police in its entirety. 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 Mr. Benjamin P. Brooks June 25, 1992 Rage 3 his former governmental body. Therefore, within the first year after termination of service with the Pennsylvania State Police, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis -a -vis the Pennsylvania State Police. 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. governmental body Therefore, since the Ethics Law must be construed to ascertain 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 the Pennsylvania State Police in its entirety. 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. Thus, in response to your specific inquiry, Section 3(g) would not restrict your proposed conduct before other governmental bodies, businesses, or educational institutions. 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 sedtor, 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 Mr. Benjamin F,. Brooks June 25, 1992 Page 4 In respect to the one year restriction against such "representation," the Et ics Law defines "Represent" as folios*: 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 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 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 Shay, Opinion 91-012, the Commission" `eld that Section 3(g) would p rohibit the inclusion of the < name pf a former public official /public employee on invoices submitted iy his Mr. Benjamin F. Brooks June 25, 1992 Page 5 :) 'T fl ': 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 the Pennsylvania State Police. However, you may not be identified on documents submitted to the Pennsylvania State Police. You may also counsel any person regarding that person's appearance before the Pennsylvania State Police. Once again, however, the activity in this respect should not be revealed to the Pennsylvania State Police. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Pennsylvania State Police 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 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 than the 'Ethics Law has not been considered in that they do not involve interpretation of the Ethics Law. Conclusion: In your former capacity as a Major with the Pennsylvania State Police, you would be be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Pennsylvania State Police, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Pennsylvania State Police in its entirety. 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, yea= following termination of service. Mr. senjamin r. Brooks June 25, 19g2 Page 6 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 'rriew this Advice. A personal appearance before the Commission Will be scheduled and a formal Opinion from the Commission will be d 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 52.12. Sincerely, 0 nc&iet Aiko. Vincent J. Dopko Chief Counsel