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HomeMy WebLinkAbout80-048 RussellPaul E. Russell, Esquire 2 N. Ninth Street Allentown, PA 18101 STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 October 14, 1980 OPINION OF THE COMMISSION 80 -048 RE: Section 3(e) - Prohibition Against Representation Dear Mr. Russell: I. Issue: You requested an Opinion as to the application of Section 3(e) of the Ethics Act and a delineation of the extent of the prohibition of Section 3(e) of the Act. II. Factual Basis for Determination: You indicated that you were employed by the Pennsyl- vania Public Utility Commission (PUC) from 1975 through July 1, 1980 as an Associate Counsel. On July 14, 1980 you began employment as an attorney with Pennsylvania Power & Light Company in PP &L's Regulatory Affairs Section. PP &L is an electric public utility regulated by the PUC. In all other respects your situation is identical to that of Kathy L. Pape who requested and was given Advice of Chief Counsel No. 80 -538. III. Applicable Law: There is no dispute or doubt that as an Associate Counsel for the PUC you were a "public employee" within the definition of that term in the Ethics Act. As such, when you left that position as of July 1, 1980 you became a "former public employee" subject to the requirements of Section 3(e) of the Ethics Act which provides: Paul E. Russell, Esquire October 14, 1980 Page 2 Regulations of the Commission define "representation" as follows: The Commission has had occasion to interpret Section 3(e) in several Opinions in addition to the Advice No. 80- 538 to which you refer. The most comprehensive analysis to date may be found in Opinion 80 -039, Morris issued August 20, 1980. This Opinion will be discussed more fully below. There are no Court cases on this topic to date. IV. Discussion: "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." "Any act on behalf of another person or advice to any person for the purpose of influencing the outcome of any event." 51 Pa. Code 1.1 Section 3(e) has been held in Opinion 80 -039, Morris to prohibit for the one -year period: 1. personal appearance before the governmental body with which you were associated, including, but not limited to negotiations; 2. attempts to influence that governmental body; 3. participation in any manner in any case over which you had supervision, direct involvement or responsibility while employed by the govern- mental body. (See also Code of Professional Responsibility) 4. lobbying, i.e. representing the interests of any person as to legislation, regulations, etc. See Seltzer. Paul E. Russell, Esquire October 14, 1980 Page 3 Former public employees are not prohibited from: (a) appearing in third forums, such as state or federal court, except as set forth in (3) above; (b) making general informational inquiries of the nature made by the public of their governmental body; (c) utilizing the knowledge and expertise gained in their tenure as public employees, except as set forth above. One final note is necessary. To the extent that Advice No. 80 -538 may be read to allow a former employee to file interrogatories and /or briefs and to sign same on cases pending before or presented to the PUC, that Advice is clarified, as set forth above. No former public employee can sign and file such items himself for the one year period. This would clearly constitute prohibited activity in (1) or (2) above. Assisting others in preparing such items where another signs, files and therefore "represents" the person, is distinguishable. V. Conclusion: - You are a former public employee and your conduct as such is to be guided by this Opinion. You are prohibited for the one year period from activities within categories (1), (2), (3) and (4) above. Specifically, you may not: (1) personally appear before the PUC or submit documents (Briefs, Interrogatories, etc.) under your signature; (2) attempt to influence the PUC, its staff or employees; (3) participate in any matter over which you had supervi- sion, direct responsibility or involvement while employed by the PUC. (4) "lobby" before the PUC. Paul E. Russell, Esquire October 14, 1980 Page 4 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 UPDATE: A Commonwealth Court ruling (434 A.2d 1327) on similiar factual circumstances should be reviewed. Former Commonwealth employees or officials who are attorneys may practice law before the governmental body with which he /she has been associated regardless of the Section 3(e) (one year) prohibition. The court ruling did not specificially address this particular opinion, but the factual circumstances may be applied to it. This Common- wealth Court opinion was affirmed, without further opinion by the Pennsylvania Supreme Court.