HomeMy WebLinkAbout80-042 WagnerDear Mr. Wagner:
STATE ETHICS COMMISSION
308 FINANCE BUILDING
HARRISBURG, PENNSYLVANIA 17120
August 20, 1980
OPINION OF THE COMMISSION
R. M. Wagner, Secretary
Board of Finance & Revenue
Treasury Department
130 Finance Building
Harrisburg, PA 17120
80 -042
On July 2, 1980, the Board of Finance and Revenue
requested the Opinion of the State Ethics Commission regarding
three related questions of representation by former members of
that Board before it. These questions require an interpretation
of the prohibition in Section 3(e) of the Ethics Act, which
states that, "No former official or public employee shall
represent a person, with or without compensation, on any matter
before the governmental body with which he has been associated
for one year after he leaves the body." These questions will be
addressed seriatim.
While the ban on representation would not
preclude general informational inquiries, you
would be prohibited by Section 3(e) from attempting
to influence in any manner a decision of the Department.
1. Does the filing of documentation i.e. petition, legal
brief or otherwise (sic) relative to the merits of any
tax appeal to the Board of Finance and Revenue or any
tax authority constitute representation before the
governmental body within the meaning of Section 3(e)
of the Ethics Act?
The term "representation" is not defined in the Act. However,
it has been defined in the Commission's regulations as:
Any act on behalf of another person or advice to
another person for the purpose of influencing the
outcome of any event. 51 Pa. Code §1.1.
Further, a number of Opinions and Advices of this Commission
have refined the concept of representation. In Cutt 1979 -23, we
stated:
R. M. Wagner
August 20, 1980
Page 2
The rationale of the Commission's interpretation of Section
3(e) is set forth in Advice of Chief Counsel 80 -538, thus:
The purpose of the State Ethics Act is not to
bar the use of intellectual expertise gained in
the service of the public, but rather the use of
personal influence with former associates.
Turning specifically to the issue at hand, it follows
that at least "the filing of documentation i.e. petition,
legal brief or otherwise (sic) relative to the merits of any tax
appeal" would constitute representation under the Ethics Act. The
mode or method of communication is not important under the Act, but
rather the purpose of the communication. If the purpose is part
of an attempt to influence any decision in any manner, it
constitutes representation under Section 3(e).
2. Does the statutory prohibition on representation for
one year after leaving a governmental body require a
strict interpretation of one calendar year or is some
lesser time sufficient?
As noted, Section 3(e) prohibits certain representation for a
period of one year. Since the term "year" is not defined in the
Ethics Act, the Statutory Construction Act controls. The act
defines "year" to mean "a calendar year." 1 Pa. C.S. §1991.
The General Assembly has drawn a clear line of one year which
must be strictly construed as any other time limitation in the law
(such as minimum drinking age or driving age or a statute of
limitations). No lesser period is allowed under the Ethics Act.
Over 60 years ago Supreme Court Justice Oliver Wendell Holmes stated:
The very meaning of a line in the law is that
right and wrong touch each other and that anyone
may get as close to the line as he can if he keeps
on the right side. Louisville & Nashville RR v. U.S.,
242 U.S. 60, 74 (1916) .
Accordingly, you are advised that Section 3(e) prohibits
representation for a period of one calendar year, not for any
lesser period of time.
3. In the case of a Board which may act without formal
hearings, does the statutory period of prohibition
on representation begin to run from the date a board
R. M. Wagner
August 20, 1980
Page 3
member last attends a formal hearing or from a date
on which he is removed from the Board by a formal
act of his principal or absent such an act termination
of service with the principal?
The prohibition in Section 3(e) on representation by an
individual before the governmental body with which he has been
associated runs for "one year after he leaves that body." Ordinarily .
this time period is triggered by the formal termination date of
employment.
There may, however, be isolated instances in which this
interpretation would work an undue hardship on an individual
nominally associated with a government body as part of his employ-
ment, who in fact left that body before terminating his employment.
For example, the designee of the Secretary of Revenue to the Board
of Finance and Revenue might be replaced by another designee, yet
keep his job at the Department of Revenue. Where he has thus
clearly left the specific government body- -the Board of Finance
and Revenue- -his one year prohibition or representation before that
Board runs from the date of his replacement, not the date of his
termination of services with the Department of Revenue. Absent a
clearly established departure date from a specific government body,
however, the general employment termination date controls.
Effect: The Commission acknowledges that this Opinion
overrules in part Advice of Chief Counsel 80 -534. Provided
that the facts set forth in the request for that Advice are
complete and accurate, it constitutes a complete defense in any
enforcement proceeding initiated by the Commission and evidence of
good faith conduct in any other civil or criminal proceeding.
Accordingly, this Opinion has prospective effect only and should
be so construed by the Board. Also, representation or continued
representation on the case and facts subject to review in Advice
#80 -534 is not barred because of reliance on that Advice.
Pursuant to Section 7(a)(1), this Opinion 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
R. M. Wagner
August 20, 1980
Page 4
CONCLUSION: Any communication to a governmental body by any
method which is part of an attempt to influence any decision in
any manner constitutes representation under Section 3(e), if the
person making the communication is identified. The statutory
prohibition on representation for one year must be strictly
construed to mean one full calendar year and no lesser period._
of time. Absent a clearly established termination date from a
specific governmental body, a public official or employee's
general termination date starts the one year period running.
PJS /af
cc: Marco S. Sonnenschein, Esquire
Francis Mazzola, Esquire
PAUL J. SMITH
Chairman