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HomeMy WebLinkAbout05-556 WachterJ. Michael Love, President & CEO Energy Association of Pennsylvania 800 North Third Street Suite 301 Harrisburg, PA 17102 ADVICE OF COUNSEL June 23, 2005 05 -556 Re: Former Public Employee; Section 1103(g); Executive Director; House Consumer Affairs Committee. Dear Mr. Love: This responds to your letter of May 26, 2005 by which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa. .S. § 1101 et seq., presents any restrictions upon employment of an Executive Director following termination of service with the House Consumer Affairs Committee. Facts: As President and CEO of Energy Association of Pennsylvania ( "EAP "), you seek an advisory on behalf of Damian Wachter ( "Wachter"), an employee of EAP. You have submitted facts that may be fairly summarized as follows. Since February 2004, Wachter served as the Executive Director of the House Consumer Affairs Committee. Prior to that time, Wachter served as a Research Analyst for the House State Government and House Consumer Affairs Committees. You state that on April 15, Wachter became the Director of Legislative Affairs for EAP. You state that as a staff member for the House of Representatives, Wachter handled the drafting and analysis of legislation and staffed bills through the legislative process. In addition, Wachter worked closely with the chairmen and members of the House Consumer Affairs Committee on legislative matters before the Committee. Wachter was responsible for setting up and staffing Committee hearings and meetings, working with the lobbying community on legislative issues, and providing advice on constituent inquiries. As Director of Legislative Affairs for EAP, Wachter's responsibilities would include providing legislative support and monitoring for EAP. In particular, Wachter Love/Wachter, 05 -556 June 23, 2005 Page 2 would function as an overseer or monitor of various committees in both the House and the Senate, including a committee comprised of EAP Members' governmental affairs people. Wachter would be required to familiarize himself with EAP's two industries and learn how various pieces of legislation might influence EAP's business. Wachter might occasionally be called upon to read prepared remarks in open forums when the other two attorneys in the office would be unavailable. You state that during the first year, Wachter would not be engaged in lobbying activites, but rather would function as a monitor, overseer and coordinator of legislation. However, given that all of EAP's members employ lobbyists, Wachter may serve in a lobbying capacity for EAP in three years. 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 requester based upon the facts that the requester has submitted. In issuing the advisory based upon the facts that the requester has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts that have not been submitted. It is the burden of the requester 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 requester has truthfully disclosed all of the material facts. In the former capacity as Executive Director for the House Consumer Affairs Committee, Damian Wachter ( "Wachter ") would be considered a ``p ublic official /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, Wachter became a "former public official /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. 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. Love/Wachter, 05 -556 June 23, 2005 Page 3 "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 ublic 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 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(g) 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. Love/Wachter, 05 -556 June 23, 2005 Page 4 The governmental body with which Wachter was associated upon termination of public service is the House of Representatives in its entirety. Therefore, for the first year after termination of service with the House Consumer Affairs Committee, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the House of Representatives. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that the Ethics Act would not prohibit Wachter, as the Director of Legislative Affairs for EAP, from monitoring various committees in both the House and the Senate following termination of his employment with the Commonwealth. However, to the extent Wachter's activities would require him to interact with the House of Representatives in a manner that would constitute prohibited "representation," his performance of such activities would be contrary to Section 1103(g) of the Ethics Act. 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 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 Executive Director with the House Consumer Affairs Committee, Wachter would be considered a "public official /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 the House Consumer Affairs Committee, Wachter became a "former public official /public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is the House of Representatives 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 requester 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 Love/Wachter, 05 -556 June 23, 2005 Page 5 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