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HomeMy WebLinkAbout80-046 GeeseySTATE ETHICS COMMISSION 3 08 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 14, 1980 OPINION OF THE COMMMISSION The Honorable Eugene Geesey Member, House of Representatives RD #2 Lewisberry, PA 17339 RE: Section 3(e) -- Restrictions, Representation Dear Representative Geesey: I. Issue: 80 -046 You request an opinion as to the affect of the Ethics Act as a former member of the House of Representatives of the Commonwealth of Pennsylvania. II. Factual Basis for Determination: You indicate in your letter that the current legislative session ends on November 30, 1980 and you will not be returning to the Legislative thereafter. As a member of the House of Representatives the Commission takes notice of the fact that technically, your term of office is set by Article 2, §2 of the Constitution. This term begins on December 1 of the year of your election and runs for two years. As a member of the House you currently serve as chairman of the Standing Committee on Professional Licensure. Your duties as Chairman and your power as Chairman are specified in the Rules of the House as adopted in House Resolution No. 53, as amended. You are a member of the Standing Committees on Game and Fisheries and Transportation. Honorable Eugene Geesey October 14, 1980 Page 2 III. Applicable Law: The most pertinent provision of the Ethics Act is Section 3(e) which provides that: "No former official or public employee shall represent a person, with or without compen- sation, on any matter before the governmental body with which he has been associated for one year after he leaves that body." The term "governmental body" has been defined as follows: "Governmental body. Any department, authority, commission, committee, council, board, bureau, division, service, office, officer, admini- stration, legislative body, or other establishment in the Executive, Legis- lative 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 79 -001, Kline where the former Lieutenant Governor was deemed to have been "associated with" the following governmental 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 for 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 organization 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 employ- ment unless some other date can be established with relation to a specific governmental body. Opinion 80 -042, Wagner. Honoiable Eugene Geesey October 14, 1980 Page 3 Definitions of "representation" appear in the Commission's regulations (51 Pa. Code 1.1) and pertinent opinions. For example, see Opinion 80 -039, Morris. Section 4(a) of the Ethics Act is also applicable and provides that: 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 subdivi- sion 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 cirumstances. Initially, it must be noted that the Ethics Act is to be liberally construed to effect 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 influence of even former officials could be restrained and regulated. Honorable Eugene Geesey October 14, 1980 Page 4 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 officials 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 represen- tation 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 common 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). 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 was not limited to circumstances or governmental bodies by which a former official was employed to assigned. The concept was apply to "governmental body" with which the official was associated. Given that "govenmental 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, an 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 a member of the House of Representatives you are clearly "associated with" the House and therefore are precluded from "representing" persons before the House. In addition, as Chairman of the Standing Committee on Professional Licensure you were "associated with" the Department of State. You may be assumed, by the nature of your position as Chairman of this Committee to have significant contact with the Department of State. Your potential ability to influence the Department of State can clearly be traced to your position as Chairman of this Committee. Honorable Eugene Geesey October 14, 1980 Page 5 As Chairman, for example, you have the authority to assign bills to sub - committees or ad -hoc committees. This, in practical affect, may be the death knell for legislation of vital interest to the Department of State. You have the ability, as Chairman, under the House Rules (Rule 45) to set the agenda for the committee. This represents another powerful means by which legislation may be "moved" or assigned a quick death. Likewise, and perhaps most importantly, as Chairman you have the leadership role in the Committee which would call for the conduct of full public hearings on legislation (Rule 50). You would chair such hearings. Your Committee could be authorized to conduct investigatory hearings (Rule 51). As Chairman, you would have authority to issue committee subpeanas for personal appearance or other documentary evidence. Either the informa- tional or the investigatory hearings provide you, as Chairman, with the authority, even if never exercised, to dramatically affect or alter the legislation which forms the lifeblood of the Department of State. Surely, it takes no monumental leap in logic to find that this power is sufficient to show that as Chairman of this Committee you were "associated with" the Department of State. This association is sufficient to warrant application of the prohibition against representation to the Department of State in your case. 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, based on our research and itemized in Part II of this Opinion. This Opinion must be construed to relate only to those facts as set forth in Part II. If facts or circumstances exist which differ substan- tially from those set forth in Part II, you should provide this information and further Advice or Opinion may be required. In particular, if you had been Chairman of any other Standing Committee of the House, that same analysis would apply to preclude your representation before the governmental body most directly associated with that Committee. For example, the Labor Relations Committee is most directly associated with the Department of Labor and Industry. Since the position as Chairman of any such Committee is a matter of record (Rule 43 and 44) the precise date of assumption of such a role is apparent. Likewise resignation or removal of a Honorable Eugene Geesey October 14, 1980 Page 6 Chairman is on record. If you obtained and lost the Chairman- ship of any other Standing Committe within the year preceeding your last day in office (December 1, 1980), you should calculate your one year period of prohibition from the date of termination of the Chairmanship. If you require further clarification as to the governmental bodies to which this prohibition would extend, if this is not apparent, submission of an additional request for opinion may be necessary. The scope of the term "representation" must 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 - Ringler and 79 -023 Cutt. (3) general informational inquiries are not prohibited; Opinion - Morris, supra; 79 -041, Peffer. (4) genrally 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 form, 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 representing 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 govern- mental 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. 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. Honorable Eugene Geesey October 14, 1980 Page 7 As a former public official you may not engage in activities discussed in Part IV, Items 1 (personal appearance, negotiating), 2 (attempts to influence), and 6 (lobbying) discussed more fully above. This prohibition lasts for one year and begins, in general, on December 1, 1980. This prohibition extends to the governmental bodies with which you were "associated" and these are: (1) The House of Representatives, its committees and component parts and (2) the Department of State. 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 that 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. 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