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HomeMy WebLinkAbout80-044 SeltzerH. Jack Seltzer, Speaker House of Representatives Commonwealth Pennsylvania STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 14, 1980 OPINION OF THE COMMISSION RE: Requirements of the Ethics Act Dear Mr. Seltzer: I. Issue: 80 -044 You request an opinion as to the affect of the Ethics Act upon you as former Speaker of the House of Representatives of the Commmonwealth of Pennsylvania. II. Factual Basis for Determination: 'You indicate in your letter that you are presently serving as Speaker of the House of Representatives. You state that you have not sought re- election and consequently you write that "last day in office will be November 30, 1980." As Speaker of the House, a position designated and described in the Constitution of the Commonwealth (Article 2, 09) you have been legislatively charged with various other responsibilities. Although not itemized in your letter, the Commission recognizes these duties and will review these as part of the facts which utilized in analyzing your request. Some of these duties are as follows: 1. You serve as Chairman of the House Rules Committee (Pennsylvania Manual, p. 221); 2. You serve as ex officio member of the Joint State Government Commission, (See 46 P.S. 65; Pennsylvania Manual, p. 278); 3. You serve as ex officio member of the General State Authority (See 71 P.S. 1707.3; Pennsylvania Manual, p. 436 -437); H. Jack Seltzer, Speaker October 14, 1980 Page 2 4. You serve as a member of the Pennsylvania Higher Education Facilities Authority (See .24 P.S. 5504, Pennsylvania Manual, p. 438), Note: membership here continues by law until your successor as Speaker assumes office even if you cease to be a member of the Legislature prior to that time. 5. You serve as a member of the Public School Building Authority (See 24 F.S. 791.3, Pennsylvania Manual p. 449). Note: membership here continues by law until your successor as Speaker assumes office even if you cease to be a member of the House prior to that time. 6. You serve as ex officio member of the Pennsylvania Emergency Management Council, formerly the Council on Civil Defense (See 35 P.S. 7312 and 71 P.S. 1689.3 respectively). 7. You serve as ex officio member of the State Highway and Bridge Authority (See 36 P.S. 3603). In addition, in general, your powers and duties as Speaker are outlined in the Rules of the House as contained in House Resolution 53. You serve for a two year term of office as outlined in Article 2, §2 of the Pennsylvania Constitution which shall begin December 1, following your election. III. Applicable Law: The most pertinent provisions of the Ethics Act is Section 3(e) which provides 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 that body." 65 P.S. 403(e) The term "governmental body" has been defined in the Act as follows: H. Jack Seltzer, Speaker October 14, 1980 Page 3 "Governmental body. Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, administration, legislative body, or other establishment in the Executive, Legislative, or Judicial Branch of the State or a political subdivision thereof." 65 P.S. 402 The Commission has had occassion to consider the scope of the term "governmental body." See for example: Opinion No. 79 -001, Kline where the former Lieutenant Governor was deemed to have been "associated with" the following govern- mental bodies: the Senate and its component parts, including party caucuses, committees and individual members; the Lieutenant Governor's Office; the Board of Pardons; the Governor's Office, and all other departments, agencies, and boards and commissions in the Executive Branch. In any conclusion or discussion in this opinion the term "person" shall be as defined in the Ethics Act, as follows: "Person. A business, individual, corporation, union, association, firm, partnership, committee, club or other organizaton or group of persons." 65 P.S. 402 Prior decisions of the Commission have interpreted the term "year" to mean one calendar year or 365 days. Opinion 80 -042, Wagner. The calculation of the beginning of this period has generally been held to be the formal termination date of employment unless some other date can be established with relation to a specific governmental body. Opinion 80 -042, Wagner. Definitions of "representation" appear in the Commission's regulations (51 Pa. Code 1.1) and pertinent opinions. The example, see Opinion 80 -039, Morris. Section 4(a) of the Ethics Act is also applicable and provides that: H. Jack Seltzer, Speaker October 14, 1980 Page 4 IV. Discussion: "Each public employee employed by the Commonwealth shall file a statement of financial interests for the preceding calendar year with the department, agency or bureau in which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position. Any other public employee shall file a statement of financial interests with the governing authority of the political subdivision by which he is employed no later than May 1 of each year that he holds such a position and of the year after he leaves such a position." 65 P.S. 404(a) There is no dispute or doubt that you are a "public official" as defined in the Ethics Act. The question is the application and extent of the prohibition of Section 3(e) of the Act. With the definitions and prior precedents in hand, on this question, the Commission must address and apply these to your particular circumstances. Initially, it must be noted that the Ethics Act is to be liberally construed to affect its purpose of restoring the public's confidence in their government. To this end every effort should be made to eliminate circumstances in which public office may be used to realize personal financial gain. To this end, the Legislature enacted the one year ban contained in Section 3(e) of the Act so that personal influ- ence of even former officials could be restrained and regulated. Section 3(e) by its very wording and with the purpose of the Act in mind should be read to eliminate the use of a former official's personal influence where it might be applied. The question of exactly where such influence might be applied is often difficult to ascertain. The Act in Section 3(e) is of some assistance in prohibiting representation before the "governmental body" with which the former official was "associated." However, this phrasealogy is clearly distinct from other words the Legislature could have chosen. For example, the Section could have limited the prohibition to the governmental body" by whom the official was employed or to which he was assigned. The phrase "associated with" may and should be given a meaning which will comport with the commmon meaning which would be ascribed to it since this phrase is not defined itself. See Statutory Construction Act, 1 Pa. C.S.A. 1903 and Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978). H. Jack Seltzer, Speaker October 14, 1980 Page 5 The verb "associated" is defined by Webster as meaning: "to join as a partner, friend or companion; to keep company with; to join or connect together; to bring together in various ways (as in memory or imagination)." Certainly, the concept involved would not ordinarily be limited to only the governmental body by which a former official was employed or assigned. The concept and the prohibition was to apply to the "governmental body" with which the official was "associated," i.e. connected, with which he was in contact most regularly, etc. Given that "governmental body" can mean any of the entities contained in the definition of that term, Section 3(e) must be construed to preclude "representation" before any of those entities the official may have been associated with, if a former official was "associated with" more than one governmental body. The use of the singular "the governmental body" shall be deemed to include the plural as required by the Statutory Construction Act. 1 Pa. C.S.A. 1902. As Speaker you are clearly precluded from "representing" any "person" before the House, since you were directly employed by, assigned to, or "associated with" the House of Represen- tatives. However, you were just as clearly "associated with" those Boards, Authorities and Commissions listed in Part II above. In your "association with" these entities you surely hold an influential position. Section 3(e) would prohibit you from representing any person before these entities as well, for the year after you leave your present post, in general. This period would generally run from the close of the session on November 30, 1980 or more precisely as of December 1, 1980, the expiration of your term of office, unless an earlier date of termination from a specific entity can be established. This would be difficult in your case since you serve ex officio (by virtue of your office) and this "office" does not expire until December 1, 1980. Incidentally, as to any entities, such as the Pennsylvania Higher Eduation Facilities Authority and the Public School Building Authority (Items 4 and 5 in Part II) your departure from the Legislature does not affect your membership. You continue to be a member until your successor as Speaker assumes in office. Given the basis for your tenure on these authorities, the one year period as to these authorities would legitimately begin to run only as of the date you actually leave those bodies. H. Jack Seltzer, Speaker October 14, 1980 Page 6 In addition, before discussing the term and scope of "representation" in your case, we must admonish that our assumptions in Part II of this Opinion are based on our research. This is, hopefully, complete and accurate. In any event, this Opinion can only operate as a defense as to those items related to the Commission or assumed in Part II above. Hence, this Opinion must relate only to those facts as set forth in Part II. If facts or circum- stances exist which differ substantially from those in Part II you should provide this information and further Advice and /or Opinion may be required. The scope of the term "representation" must also be addressed. Generally, the Commission has held that: (1) Personal appearance before the governmental body is prohibited; See Opinion 80 -039, Morris. This includes negotiating contracts, for example. (2) Attempts to influence are prohibited; Opinion 79 -041 Covill- Ringer and Opinion 79 -023, Cutt. (3) General informational inquiries are not prohibited; Morris, supra; Opinion 79 -041, Peffer. (4) Generally, utilizing your knowledge and expertise gained as a public official is not barred except as set forth above; Morris, supra? (5) Appearing in a third such as state or federal court is not prohibited; Opinion 79 -060, Berger; Morris, supra. (6) Expressing your own opinions and views on your own behalf is not prohibited; Opinion 80 -040, Lloyd. This is to be distinguished from represen- ting the views and /or interests of any other person either formally or informally. This action, which would include, generally, the concept of "lobbying" is prohibited for the one year period as to the identified governmental bodies. Finally, Section 4(a) of the Ethics Act requires that you file a Statement of Financial Interests for the year 1980 no later than May 1, 1981. H. Jack Seltzer, Speaker October 14, 1980 Page 7 V. Conclusion: As a former public official you must, of course, comply with the financial reporting requirements of Section 4. This requires you to file a Statement of Financial Interests for each year you hold office and for the year after you leave office as discussed above. As a former public official you may not engage in activities listed in 1 (personal appearance, negotiating), 2 (attempts to influence), and 6 (lobbying) in Part IV above for the one -year period after you leave the position of Speaker of the House of Representatives. This year will begin as of December 1, 1980 except that it may begin, as to those positions you retain until your successor assumes office, on a later date. The governmental bodies with which you are "associated" and therefore precluded from representing any person include: (1) the House of Representatives, in particular, its committees and component parts; (2) the Joint State Government Commission; (3) the General State Authority; (4) the Pennsylvania Higher Education Facilities Authority; (5) the Public School Building Authority; (6) the Pennsylvania Emergency Management Council; and (7) the State Highway and Bridge Authority. You are not precluded from "representing" any person before a "governmental body" other than those listed above. One caveat is required. The State Ethics Commission specifically does not address through this Opinion, the question of whether appointment by the majority or minority leadership of the House, or otherwise, as a member, on a board, commission, authority, etc. other than a Committee of the House imposes any restrictions as to the board, commission, authority, etc. This is reserved for decision. You did not raise this possibility, but you will receive further advice on this point in the near future after the staff has had an opportunity to fully review this question. H. Jack Seltzer, Speaker October 14, 1980 Page 8 Pursuant to Section 7(9)(i), this opinion is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any 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. PJS /rdp UL J. Chairman