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HomeMy WebLinkAbout03-520 HammondADVICE OF COUNSEL Catherine R. Hammond, Executive Director Pennsylvania League of Conservation Voters P.O. Box 158 Harrisburg, PA 17108 March 4, 2003 03 -520 Re: Former Public Employee; Section 1103(g); Legislative Aide; Administrative Officer II; Pennsylvania Senate. Dear Ms. Hammond: This responds to your letter of January 27, 2003, by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 1a. =S. § 1101 et seq., presents any restrictions upon employment of an Administrative Officer II ollowing termination of service with the Pennsylvania Senate. Facts: As a former Administrative Officer 11 with the Pennsylvania Senate, you seek advisory from the State Ethics Commission based upon the following submitted facts. From 1987 until the end of November 2002, you worked as a legislative aide, first to Senator Bill Lincoln, then to Senator Leonard Bodack. You believe that your official title was Administrative Officer 11, but you state that this title had more to do with salary than with function. You state that for both senators, you researched issues, wrote legislation, constituent letters, speeches, and floor remarks, dealt with lobbyists on issues, and attended meetings in their stead. You are now employed as the Executive Director of the Pennsylvania League of Conservation Voters ( "PLCV "), a 501(c)(4) organization, which engages in lobbying, produces an annual scorecard of legislative records, and endorses candidates. You state that the PLCV has a political action committee which supports candidates. PLCV's "sister organization," the Pennsylvania Conservation Voters Education League ( "PCVEL "), is a 501(c)(3) organization which provides voter education on conservation issues. You state that PCVEL deals with issues rather than individual candidates. Hammond, 03 -520 March 4, 2003 Page 2 You state your understanding that certain restrictions apply to your activities as they relate to the Senate of Pennsylvania. You seek clarification as to what those restrictions are. You pose the following seven inquiries: 1. Whether our name may appear on a scorecard produced by the PLCV for the sine die session which just ended for distribution to the Senate 2. Whether you make take the scorecard to each office in the Pennsylvania House of Representatives and the Pennsylvania Senate; 3. Whether you may meet with executive directors of the environmental committees in the Pennsylvania House of Representatives and the Pennsylvania Senate to discuss what bills we should consider for our scorecard during the next session; 4. Whether you may meet with David Hess, the former Secretary of the Department of Environmental Protection who has recently accepted a job with the Senate Republican leadership to discuss PLCV's standing and to elicit ideas from him about what PLCV should do in the future; 5. Whether there is anything to prevent you from meeting friends who work for the Senate on a purely personal basis; 6. Whether you may e-mail your friends in the Pennsylvania Senate to set up social dates; and 7 Whether you may seek advice from Senate staffers or members regarding possible contributors to the PLCV, or possible new Board members. Discussion: It is initially noted that pursuant to Sections 1107(10) and 1107 (11) of the Ethics Act, 65 Pa.C.S. §§ 1107(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 Pa.C.S. § 1107(10), (11). An advisory only affords a defense to the extent the requestor has truthfully disclosed all of the material facts. In the former capacity as an Administrative Officer II for the Pennsylvania Senate, you would be considered a "public employee" subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. While Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment, it does restrict the former public official /public employee with regard to "representing" a "person" before "the governmental body with which he has been associated ": § 1103. Restricted activities (g) Former official or employee. - -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. Hammond, 03 -520 March 4, 2003 Page 3 65 Pa.C.S. § 1103(g) (Emphasis added). The terms "represent," "person," and "governmental body with which a public official or public employee is or has been associated" are specifically defined in the Ethics Act as follows: § 1102. Definitions "Represent." To act on behalf of any other person in 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. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. "Governmental body with which a public official or public employee is or has been associated." The governmental body within State government or a political subdivision by which the public official or employee is or has been employed or to which the public official or employee is or has been appointed or elected and subdivisions and offices within that governmental body. 65 Pa.C.S. § 1102. The term "person" is very broadly defined. It includes, inter alia, corporations and other businesses. It also includes the former public employee - himself, Confidential Opinion, 93 -005, as well as a new governmental employer. Ledebur, Opinion 95 -007. The term "representation" is also broadly defined to prohibit acting on behalf of any person in any activity. Examples of prohibited representation include: (1) personal appearances before the former governmental body or bodies; (2) attempts to influence; (3) submission of bid or contract proposals which are signed by or contain the name of the former public official /public employee; (4) participating in any matters before the former governmental body as to acting on behalf of a person; and (5) lobbying. Popovich, Opinion 89 -005. Listing one's name as the person who will provide technical assistance on a proposal, document, or bid, if submitted to or reviewed by the former governmental body, constitutes an attempt to influence the former governmental body. Section 1103(g) also generally prohibits the inclusion of the name of a former public official /public employee on invoices submitted by his new employer to the former governmental body, even though the invoices pertain to a contract that existed prior to termination of public service. Shay, Opinion 91 -012. However, if such a pre- existing contract does not involve the unit where the former public employee worked, the name of the former public employee may appear on routine invoices if required by the regulations of the agency to which the billing is being submitted. Abrams/Webster, Opinion 95 -011. A former public official /public employee may assist in the preparation of any documents presented to his former governmental body. However, the former public official /public employee may not be identified on documents submitted to the former governmental body. The former public official /public employee may also counsel any person regarding that person's appearance before his former governmental body. Once again, however, the activity in this respect should not be revealed to the former governmental body. The Ethics Act would not prohibit or preclude making general Hammond, 03 -520 March 4, 2003 Page 4 informational inquiries to the former governmental body to secure information which is available to the general public, but 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. Section 1103() only restricts the former public official /public employee with regard to representation before his former governmental body. The former public official /public employee is not restricted as to representation before other agencies or entities. However, the "governmental body with which a public official /public employee is or has been associated" is not limited to the particular subdivision of the agency or other governmental body where the public official /public employee had influence or control but extends to the entire body. See, Legislative Journal of House, 1989 Session, No. 15 at 290, 291; Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009 -R. The governmental body with which you were associated upon termination of public service would be the Pennsylvania Senate in its entirety. Therefore, for the first year after termination of service with the Pennsylvania Senate, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Pennsylvania Senate. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your six specific inquiries shall now be addressed. In response to your first inquiry, Section 1103(g ) of the Ethics Act would prohibit you during the one -year period of restricted activity from submitting written documents containing your name to the Pennsylvania Senate including scorecards produced by PLCV. In response to your second inquiry, Section 1103() of the Ethics Act would prohibit you during the one -year period of restricted activity from distributing a scorecard containing your name to each office in the Pennsylvania Senate, but would not prohibit you from distributing the scorecard to the Pennsylvania House of Representatives as such is not your former governmental body. In response to your third inquiry, Section 1103(g) of the Ethics Act would prohibit you during the one -year period of restricted activity from meeting with executive directors of the environmental committees of the Pennsylvania Senate, but would not preclude you from such meetings with executive directors of the environmental committees of the Pennsylvania House of Representatives. In response to your fourth inquiry, as per Section 1103(g) of the Ethics Act, you would be precluded from meeting with David Hess who works with the Senate Republican leadership as such would constitute making personal appearances before your former governmental body. In response to your fifth and sixth inquiries, the Ethics Act would not prohibit you from meeting friends who work for the Senate on a purely personal basis or e- mailing friends to set up social dates assuming there would be no attempts by you to influence your former governmental body in contravention of Section 1103(g) of the Ethics Act. In response to your seventh inquiry, Section 1103(g) of the Ethics Act would preclude you from seeking advice from Senate staffers or members regarding possible contributors to the PLCV or possible new Board members, as such would constitute making personal appearances before your former governmental body. Based upon the facts which have been submitted, this Advice has addressed the applicability of Section 1103(g) only. It is expressly assumed that there has been no use of authority of office for a private pecuniary benefit as prohibited by Section 1103(a) of the Ethics Act. Further, you are advised that Sections 1103(b) and 1103(c) of the Ethics Act Hammond, 03 -520 March 4, 2003 Page 5 provide in part that no person shall offer to a public official /public employee and no public official /public employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /public employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has been or 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 addressed under the Ethics Act; 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 Act. Conclusion: In the former capacity as an Administrative Officer II with the Pennsylvania Senate, you would be considered a "public employee" as defined in the Public Official and Employee Ethics Act (Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of service with Pennsylvania Senate, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the Pennsylvania Senate 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 Act. Further, should service be terminated, as outlined above, the Ethics Act would require that a Statement of Financial Interests be filed by no later than May 1 of the year after termination of service. Pursuant to Section 1107(11), an 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, provided 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. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may appeal the Advice to the full Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actually received at the Commission within thirty (30) days of the date of this Advice pursuant to 51 Pa. Code § 13.2(h). The appeal may be received at the Commission by hand delivery, United States mail, delivery service, or by FAX transmission (717- 787 - 0806). Failure to file such an appeal at the Commission within thirty (30) days may result in the dismissal of the appeal. Sincerely, Vincent J. Dopko Chief Counsel