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HomeMy WebLinkAbout92-644Ms. Mary Ellen McMillen 3765 Silverwood Drive York, PA 17402 Dear Ms. McMillen: STATE ETHICS COMMISSION 309 FINANCE BUILDING PO. BOX 11470 HARRISBURG. PA 17108 -1470 TELEPHONE (717) 783 -1610 ADVICE OF COUNSEL November 13, 1992 92 -644 Re: Former Public Employee; Section 3(g); Executive Director; Executive Assistant III; Senate Urban Affairs and Housing Committee. This responds to your letter of October 9, 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 an Executive Director classified as an Executive Assistant III, following termination of service with the Senate Urban Affairs and Housing Committee. Facts: You state that on September 30, 1992, you terminated employment with Senator James C. Greenwood as the Executive Director of the Senate Urban Affairs and Housing Committee. On October 1, 1992, you became an employee of S.R. Wojdak & Associates, where you will act as a health care consultant. Based upon the above, you seek an advisory as to the limitations of Section 3(g) of the Ethics Law with regard to future contact with the Senate �f Pennsylvania. You state your understanding that the statute prohibits a departing employee from representing a person before the governmental body with which the employee had been associated for a period of one year. You seek further clarification of these restrictions with particular regard to meetings, phone calls, written correspondence, and the like, and whether the contacts might be initiated by you or by the Senate Urban Affairs and Housing Committee. You request an expedited response as you have already undertaken your new duties. A copy of 'yotit job description has been obtained from the Ns Mary Ellen McMillen November 13, 1992 Pate 2 Senate Urban Affairs and Housing Committe, . which document is incorporated herein by reference. Discussion: As the Executive Director for the Senate Urban Affairs and Housing Committee, you would be considered a "public employee" within the definition of that tern as set forth in the Public Official and Employee Ethics Law' and the Regulations of this Commission. 65 P.S. S402; 51 Pa. Code S1.1. This conclusion is based upon the job description, which when reviewed on an objective basis, indicates clearly that the powef 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 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 were associated while working with the Senate tirbai Affairs and Housing Committee must be identified. Then, the scope of the prohibitions associated with the concept and terth of "representation" must be reviewed. The term "governmental body with which a public official br public employee is or has been associated" is defined under the Eth }es Lair 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 subdi`iaion by' which the public official or employee is ter has been einpldfied Of to vihieh the public official Or employed is or has been- appoi1ited or eledtea and subdivid iona and offices within Ms. Mary Ellen McMillen November 13, 1992 Page 3 that governmental body. In applying the above definition to the instant matter, we must conclude that the governmental body with which you were associated upon termination of public service would,be,the Senate of Pennsylvania, 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 his former governmental body. Therefore, within the first year after- termination of service with the Senate Urban Affairs and Housing Committee, Section 3(g) of the Ethics Law would apply and restrict representation of persons or new employers vis-a-vis the Senate of Pennsylvania, in its entirety. 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 wag 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. 51901 it is clear that the governmental body with which you have been associated is the Senate of Pennsylvania, 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 Ms. Mary Ellen McMillen November 13, 1992 Page 4 agencies pr entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in w"hicha person may engage, following departure ; from their governmental;; body. It is noted, however, that the conflicts ' of - interest law is ptimarily concerned with financial conf LEcts and violations of the public trust The intent of the law generally is that during the terih 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 br . a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to one year restriction against such epresentation," the Ethics Law defines "Represent" as follows: Section 2. Definitions. "Represent." To act on behalf of any other person 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 gthics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, Club or other organization or group of persons. The Commission., in Opinion 89 -005, has also interpreted the tein "representation" as used in Section 3(g) of the Ethics Law to prohibit: _1. Personal appearauoes before the former governmental body or . including, but not limited_ to negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. SubmisSiqi o .,bid or contract proposals which are signed by or contain the name of the former public official /employee; Ms. Mary Ellen McMillen November 13, 1992 Page 5 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 form of contact is not dispositive. Representation by you, whether in the form of meetings, phone calls, and /or written correspondence, would be prohibited under Section 3(g). These restrictions likewise would apply ' Without regard to which party would initiate such a contact.- 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 gdvernmental 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 Senate of Pennsylvania. However, you may not be identified on documents submitted to the Senate of Pennsylvania. You may also counsel any person regarding that person's appearance before the Senate CI Pennsylvania. Once again, however, the activity in this respect Should not be revealed to the Senate of Pennsylvania. Of course, any'ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of the Senate of Pennsylvania 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 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 Ms. Mary Ellen McMillen NoveMber 13, 1992 Page 6 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 interpretation of the Ethics Law. Conclusion: As the Executive Director of the Senate Urban Affairs and Housing Committee, you would be considered a "public employee" as defined in the Ethics Law. Upon termination of service with the Senate Urban Affairs and Housing Committee, you became a "former public employee" subject to Section 3(g) of the Ethics Law. The former governmental body is the Senate of Pennsylvania, 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 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. s 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 request that the full Commission revieat 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 Cottimission within 15 days of the date of this Advice pursuant to 51 Pa. Code 52.12. Sincerely, / 4 16 f 4. Vincent J. Dopko Chief Counsel