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HomeMy WebLinkAbout91-008 GaskillMr. Ronald L. Gaskill Eastern United States Agricultural and Food Export Council, Inc. 1424 Chestnut Street Fifth Floor Philadelphia, PA 19102 Dear Mr. Gaskill: I. Issue: STATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 OPINION OF THE COMMISSION Before: Robert W. Brown, Chair Dennis C. Harrington, Vice Chair James M. Howley Daneen E. Reese Roy W. Wilt Austin M. Lee James P. Gallagher DATE DECIDED: August 23, 1991 DATE MAILED: September 3, 1991 91 -008 RE: Conflict, Public Employee, Former Public Employee, Executive Level Employee, Bureau Director, Department of Agriculture, Representation, Eastern United States Agriculture and Food Export Council, Inc., Executive Director, Employment This Opinion is issued in response to your letter of request dated June 14, 1991. Whether under the Public Official and Employee Ethics Law any prohibitions or restrictions are applicable to a Bureau Director of the Department of Agriculture who resigns and assumes private employment as Executive Director of the Eastern United States Agriculture and Food Export Council, Inc., the "regular membership" of which Council is comprised of the Departments of Agriculture of ten northeastern states including Pennsylvania, with the heads of said Departments of Agriculture or their designees serving as the Board of Trustees. II. Factual Basis for Determination: As the Executive Director of the Eastern United States Agriculture and Food Export Council, Inc. (EUSAFEC), you request an advisory Opinion as to the impact of the Ethics Law upon your activities in your new position. You were employed by the Pennsylvania Department of Agriculture as Director of the Bureau of Market Development until May 10, 1991. At that time, with three years and nine months service, you resigned to accept your current position with EUSAFEC. You acknowledge that in your former position as a Bureau Director with the Pennsylvania Department of Agriculture, you were an "executive -level state employee" as defined under the Ethics Law. After noting that you were issued an Advice of Counsel (No. 90 -592) on an unrelated matter, you inquire as to what activities would be considered restricted for you as a former public employee relative to interacting with the governmental agency by which you were formerly employed. You have submitted a job description for your position as Executive Director with EUSAFEC; the EUSAFEC By -Laws as amended July 18, 1976; and a copy of EUSAFEC's Certificate of Incorporation, which documents are incorporated herein by reference. The Pennsylvania Department of Agriculture (PDA) administers an International Trade Program within its Bureau of Market Development. The Program provides consultation with Pennsylvania agriculture and food businesses to help them learn about and experience export trade. In conducting the International Trade Program, PDA has access to programs offered by the Foreign Agriculture Service (FAS) of the United States Department of Agriculture. The PDA accesses some of these programs directly from FAS and others through EUSAFEC which is a private non- profit industrial trade corporation. The FAS programs offered by EUSAFEC to its member states cannot be accessed by the states in any other way. As noted EUSAFEC has ten "regular members" which are the Departments of Agriculture of the ten participating states, one of which is PDA. However, according to Article I of the Incorporated By -Laws, other state Departments of Agriculture may be admitted to "regular membership" upon application and an affirmative two - thirds vote of the total Board of Trustees of EUSAFEC. Furthermore, "associate membership" is open to non - governmental entities including "individuals, companies, cooperatives, and organizations who have an interest in the exporting of agricultural commodities, foods, and kindred products." By -Laws, Article I, Section 3. Such associate members are admitted by an affirmative vote of two - thirds of the total Board of Trustees. Only regular members have the right to vote on policy matters, By -Laws, Article I, Section 6, but it would appear that associate members also have the right to develop and participate in council - approved and sponsored projects and to attend any meeting. Id., Article V. The Secretaries /Commissioners from the member state Departments of Agriculture form the Board of Trustees of EUSAFEC which is the governing body. The Board has primary decision making responsibility for the policies of the organization and is supplemented by a Program Committee that advises the Board and EUSAFEC staff on program operations. You state that the Committee consists of marketing directors from each member state Department of Agriculture, but Article IV, Section 2 of the By -Laws states that the Program Committee may also consist of associate members. Nevertheless, you state that the said Committee is only advisory in nature. The EUSAFEC staff consists of the Executive Director and two other marketing and business specialists. The Executive Director reports directly to the Board and has supervisory responsibility over all EUSAFEC staff. However, the Executive Director also has the responsibility of interacting regularly with the Board Members including the Secretary of PDA, and with state marketing staff including staff of PDA's International Trade Division. Further responsibilities of the Executive Director include providing information about EUSAFEC business matters, recommending organization and program actions, implementing board actions and policies, working with state marketing staffs to implement EUSAFEC programs and other items normally associated with the responsibilities of an international trade development organization. Lastly, the Executive Director represents EUSAFEC to the FAS. EUSAFEC receives annual dues by each member state and the rate is set by the Board. The EUSAFEC staff send invoices to each state to collect the dues once a year which is usually the only funding provided by member states to EUSAFEC with the remainder coming from FAS and private businesses using EUSAFEC programs. After noting that you recently assumed the responsibilities of Executive Director of EUSAFEC, you advise that you maintain regular contact with and represent the interests of EUSAFEC to the Secretary of PDA in his position as a EUSAFEC Board Member. In addition you maintain regular contact with the international trade staff of PDA and work to implement EUSAFEC programs through state marketing staffs. You suggest that your interactions are not in the nature of a lobbying activity and would not in your view violate the public trust. You conclude by requesting our opinion on this matter. III. Discussion: As the Director for the Bureau of Market Development for the Pennsylvania Department of Agriculture, you were a "public employee" and an "executive -level state employee" as those terms are defined under the Ethics Law. Upon termination of public service, you became a former public employee subject to the provisions of Section 3(g) of the Public Official and Employee Ethics Law. As an executive -level state employee you would also be subject to the restrictions of Section 3(i) of the Ethics Law which provides as follows: Section 3. Restricted Activities (i) No former executive -level State employee may for a period of two years from the time that he terminates his State employment be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participates in recruiting to the Commonwealth of Pennsylvania or that he actively participated in inducing to open a new plant, facility or branch in the Commonwealth or that he actively participated in inducing to expand an existent plant or facility within the Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. Since under the proffered facts it does not appear that there was any recruitment or inducement on your part as to a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to EUSAFEC, this provision of the Ethics Law would not have application and hence will not be discussed. Turning to Section 3(g) of the Ethics Law, this provision provides: Section 3. Restricted activities (g) 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. In order to answer your request, we must determine the governmental body with which you were associated while working with the Pennsylvania Department of Agriculture. We will then consider the prohibitions associated with the definitional term "represent," followed by an application of the law to your situation. The term "governmental body with which a public official or public employee is or has been associated" is defined under the Ethics Law as follows: Section 2. Definitions "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. We must conclude that the governmental body with which you were associated upon termination of public service would be the Pennsylvania Department of Agriculture including but not limited to the Bureau of Market Development. The foregoing conclusion is based upon the language of the Ethics Law and the legislative intent as set forth in the Legislative Journal of the House, 1989 session, No. 15 at 290, 291. It is noted that Act 9 of 1989 significantly broadened the definition of the term "governmental body with which a public official or public employee is or has been associated." It was the specific intent of the General Assembly to define the above term so that it was not merely limited to the area where a public official /employee had influence or control but extended to the entire governmental body with which the public official /employee was associated. The foregoing intent is reflected in the legislative debate relative to the amendatory language for the above term: We sought to make particularly clear that when we are prohibiting for 1 year that revolving -door kind of conduct, we are dealing not only with a particular subdivision of an agency or a local government but the entire unit... Legislative Journal of House, 1989 Session, No. 15 at 290, 291. Therefore, since the Ethics Law must be construed to ascertain and effectuate the intent of the General Assembly under 1 Pa. C.S.A. 1901, it is clear that the governmental body with which you were associated is the Pennsylvania Department of Agriculture. The foregoing is also consistent with the prior precedent of this Commission. See Sirolli, Opinion 90 -006; Sharp, Opinion 90- 009-R. Therefore within a period of one year after the termination of your public service on May 10, 1991, Section 3(g) of the Ethics Law would restrict you from representing a person upon any matter before your former governmental body. Parenthetically the requirement that the representation be for promised or actual compensation would clearly apply in this case since you are compensated for your duties as Executive Director of EUSAFEC. Turning now to the scope of the restrictions under Section 3(g), the Ethics Law does not affect one's ability to appear before agencies or entities other than with respect to the former governmental body. Likewise, there is no general limitation on the type of employment in which a person may engage, following departure from their governmental body. It is noted, however, that the conflicts of interest law is primarily concerned with financial conflicts and violations of the public trust. The intent of the law generally is that during the term of a person's public employment he must act consistently with the public trust and upon departure from the public sector, that individual should not be allowed to utilize his association with the public sector, officials or employees to secure for himself or a new employer, treatment or benefits that may be obtainable only because of his association with his former governmental body. In respect to the one year representation, the Ethics Law defines "Represent" as follows: Section 2. 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. In addition, the term "Person" is defined as follows under the Ethics Law: Section 2. Definitions. "Person." A business, governmental body, individual, corporation, union, association, firm, partnership, committee, club or other organization or group of persons. This Commission, in Popovich, Opinion 89 -005, has also interpreted the term "representation" as used in Section 3(g) of the Ethics Law to prohibit: 1. Personal appearances before the former governmental body or bodies, including,.,but not limited to, negotiations or renegotiations in general or as to contracts; 2. Attempts to influence; 3. Submission of bid or contract proposals which are signed or contain the name of the former public official /employee; 4. Participating in any matters before the former governmental body as to acting on behalf of a person; 5. Lobbying, that is representing the interests of any person or employer before the former governmental body in relation to legislation, regulations, etc. This Commission has also held that listing one's name as the person who will provide technical assistance on such proposal, document, or bid, if submitted to or reviewed by the former governmental body constitutes an attempt to influence the former governmental body. Therefore, within the first year after termination of service, you should not engage in the type of activity outlined above. You may, assist in the preparation of any documents presented to PDA so long as you are not identified as the preparer. You may also counsel any person regarding that person's appearance before PDA. Once again, however, the activity in this respect should not be revealed to PDA. Of course, any ban under the Ethics Law would not prohibit or preclude the making of general informational inquiries of PDA to secure information which is available to the general public. 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. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee and no public official /employee shall solicit or accept any thing of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is made to these provisions of the law not to imply that there has or will be any transgression thereof but merely to provide a complete response to the question presented. In the instant situation, Section 3(g) of the Ethics Law would not impose any restrictions upon you in your dealings with the nine regular member states or their Secretaries /Commissioners other than PDA since those nine states and their respective representatives are not your former governmental body. However, as to PDA and its personnel, including but not limited to the Secretary of Agriculture and the personnel on the International Trade Staff, your activities as Executive Director of EUSAFEC which you designate as a private non - profit international trade organization, would in our view be literally considered as representing a person before your former governmental body, PDA. A reading of Section 3(g) and the definitions contained in the Ethics Law compel the above result. In particular you are a former public employee. In addition EUSAFEC is a "person" as defined in the Ethics Law since it is an organization. Further, although you indicate that you have regular contact and represent EUSAFEC before the Secretary of PDA, such activity does constitute representation under our Act since you would be acting on behalf of EUSAFEC in any activity. Therefore, Section 3(g) compels us to conclude that you may not engage in any such contacts with PDA, its Secretary or International Trade Staff. The foregoing does not preclude you from dealing with the PDA Secretary of Agriculture when he is sitting in his capacity as a member of the Board of Trustees of EUSAFEC. However, you cannot as Executive Director of EUSAFEC represent EUSAFEC by making contacts to PDA, its Secretary, International Trade Staff or other employees of that department. In addition, you must observe the above strictures which are outlined as to a former public employee and the governmental body with which he was associated. We realize that the above restrictions of Section 3(g) create a dilemma for you in dealing with PDA, one of the ten regular member states of EUSAFEC. You should have contacted this Commission prior to accepting the position as you did in Gaskill, Advice 90 -592. Since you have accepted the position of EUSAFEC Executive Director, you will have to make necessary arrangements as to comply with the restrictions of Section 3(g) outlined above. We do recognize the inherent worthwhile purpose of EUSAFEC but we do not have the latitude to ignore the requirements of Section 3(g) of our Act as legislated by the General Assembly of the Commonwealth of Pennsylvania. Accordingly, we must conclude that as a former public employee, you would be precluded from representing EUSAFEC before your former governmental body, PDA, for a period of one year after termination of public service. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. IV. Conclusion: The former Director of the Bureau of Market Development within the Department of Agriculture was an "executive -level state employee" and a "public employee" under the Ethics Law. Upon termination of public service, the Bureau Director became a former public employee subject to the restrictions of Section 3(g) of the Ethics Law. The former public employee is restricted for a period of one year after termination of service from representing any person, including his new employer which is a private non - profit international trade organization, before his former governmental body, the Pennsylvania Department of Agriculture. Pursuant to Section 7(10), the person who acts in good faith on this opinion issued to him shall not be subject to criminal or civil penalties for so acting provided the material facts are as stated in the request. such. This letter is a public record and will be made available as Finally, any person may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within fifteen days of the mailing date of this Opinion. The person requesting reconsideration should present a detailed explanation setting forth the reasons why the Opinion requires reconsideration. By the Commission, Dennis C. H Vice Chair rrington