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HomeMy WebLinkAbout07-007 CONTIJoe Conti Chief Executive Officer Pennsylvania Liquor Control Board Northwest Office Building, Room 503 910 Capitol Street Harrisburg, PA 17124 Dear Mr. Conti: I. ISSUE: OPINION OF THE COMMISSION Before: Louis W. Fryman, Chair John J. Bolger, Vice Chair Donald M. McCurdy Paul M. Henry Raquel K. Bergen Nicholas A. Colafella DATE DECIDED: 3/28/07 DATE MAILED: 4/11/07 07 -007 This Opinion is issued in response to your advisory request dated January 8, 2007. Whether the Public Official and Employee Ethics Act would impose any prohibitions or restrictions upon a former State Senator who presently serves as the Chief Executive Officer for the Pennsylvania Liquor Control Board, particularly with regard to interacting with the Pennsylvania Senate and its subcommittees in an official capacity, socializing with Members of the Pennsylvania Senate, continuing to rent a home with a current Member of the Pennsylvania Senate, or discussing with Pennsylvania Senators matters that are not related to the Pennsylvania Liquor Control Board or the former State Senator. II. FACTUAL BASIS FOR DETERMINATION: You state that you recently retired from the Pennsylvania Senate (hereinafter, "Senate "). You presently serve as the Chief Executive Officer for the Pennsylvania Liquor Control Board ( "PLCB "). As a former State Senator, you seek an advisory as to any prohibitions or restrictions that Section 1103(g) of the Ethics Act would impose upon you with regard to Conti, Opinion 07 -007 April 11, 2007 Page 2 interacting with the Senate or individual Members of the Senate. You pose the following specific inquiries: 1. Whether the Ethics Act would impose any restrictions upon you with regard to interacting with the Senate and its subcommittees in your official capacity as the Chief Executive Officer of the PLCB. Examples of such interaction would include: (1) discussing with a Senator or a committee proposed legislation in which the PLCB has an interest; (2) testifying at a budget hearing; (3) providing technical advice to the Senate or a subcommittee on proposed legislation that may affect the PLCB but on which the PLCB has not adopted a particular position; and (4) participating in regular meetings with the four chairmen of the two oversight committees to discuss legislative proposals and /or operational issues regarding the PLCB. 2. Whether the Ethics Act would impose any restrictions upon you with regard to socializing with your former colleagues in the Senate, as for example, by having lunch with them. 3. Whether the Ethics Act would impose any restrictions upon you with regard to continuing to rent a home with a current Member of the Senate. 4. Whether the Ethics Act would impose any restrictions upon you with regard to informally discussing with individual Senators matters that have no relation to either the PLCB or you personally, as for example, the provisions of the Crimes Code or the Pennsylvania Race Horse Development and Gaming Act ( "Gaming Act "). By letter dated February 8, 2007, you were notified of the date, time and location of the public meeting at which your request would be considered. At the public meeting on March 28, 2007, you appeared for the purpose of answering any questions of this Commission. III. 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, this 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an opinion /advice may be given only as to prospective (future) conduct. If the activity in question has already occurred, the Commission may not issue an opinion /advice, but any person may then submit a signed and sworn complaint, which will be investigated by the Commission if there are allegations of Ethics Act violations by a person who is subject to the Ethics Act. To the extent that your inquiries relate to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent that your inquiries relate to future conduct, your inquiries may and shall be addressed. Conti, Opinion 07 -007 April 11, 2007 Page 3 In your former capacity as a Pennsylvania State Senator, you would be considered a "public official" 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 service with the Senate, you became a "former public official" subject to Section 1103(g) of the Ethics Act. In this regard it is noted that you are both a former public official as to the Senate and a current public official /public employee as to the PLCB. 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. "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 Conti, Opinion 07 -007 April 11, 2007 Page 4 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 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. The governmental body with which you are deemed to have been associated upon termination of service with the Senate is the Senate in its entirety as well as any Boards, Commissions, Committees and the like upon which you served in an official capacity. Therefore, for the first year after termination of service with the Senate, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Senate and any Boards, Commissions, Committees and the like upon which you served in an official capacity. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. In response to your first inquiry, you are advised that Section 1103(g) of the Ethics Act would apply to restrict you as Chief Executive Officer of the PLCB from representing the PLCB before the Senate, even though the PLCB is a governmental body as opposed to a private employer. See, Ledebur, supra. Therefore, during the one -year period of applicability of Section 1103(g) of the Ethics Act, you would be prohibited from interacting Conti, Opinion 07 -007 April 11, 2007 Page 5 with the Senate or its committees /subcommittees in your official capacity as the Chief Executive Officer of the PLCB in any manner that would constitute "representation." Such prohibited interaction would include, but would not be limited to, making personal appearances before the Senate, its committees or subcommittees, or discussing matters involving the PLCB with individual Senators. As to your second and third inquiries, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from socializing with your former colleagues in the Senate or continuing to rent a home with a current Member of the Senate as long as in so doing, you would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). In response to your fourth inquiry, you are advised that Section 1103(g) of the Ethics Act would not restrict you from informally discussing with individual Senators matters that would have no relation to the PLCB or any other person that you would represent for promised or actual compensation, in that such discussions by definition would not involve prohibited representation before your former governmental body. Based upon the facts that have been submitted, this Opinion 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. 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. Specifically not addressed herein is the applicability of the Legislative Code of Conduct. IV. CONCLUSION: A Pennsylvania State Senator is a "public official" subject to the provisions of the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act ") and Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Upon termination of service with the Pennsylvania Senate (hereinafter, "Senate "), and commencement of service as Chief Executive Officer of the Pennsylvania Liquor Control Board ( "PLCB "), the former State Senator would be considered a former public official as to the Senate and a current public official /public employee as to the PLCB. During the first year following termination of service with the Senate, the former State Senator would be subject to Section 1103(g) of the Ethics Act. The former governmental body would be the Senate in its entirety as well as any Boards, Commissions, Committees and the like upon which the individual served in an official capacity. For the first year after termination of service with the Senate, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before the Senate and any Boards, Commissions, Committees and the like upon which the former State Senator served in an official capacity. During the one -year period of applicability, Section 1103(g) of the Ethics Act would prohibit the former State Senator from interacting with the Senate or its committees /subcommittees in his official capacity as the Chief Executive Officer of the PLCB in any manner that would constitute "representation." Section 1103(g) of the Ethics Act would not prohibit the former State Conti, Opinion 07 -007 April 11, 2007 Page 6 Senator from socializing with his former colleagues in the Senate or continuing to rent a home with a current Member of the Senate as long as in so doing, he would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). Section 1103(g) of the Ethics Act would not restrict the former State Senator from informally discussing with individual Senators matters that would have no relation to the PLCB or any other person that he would represent for promised or actual compensation, in that such discussions by definition would not involve prohibited representation before his former governmental body. The restrictions as to representation outlined above must be followed. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(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. This letter is a public record and will be made available as such. Finally, a party may request the Commission to reconsider its Opinion. The reconsideration request must be received at this Commission within thirty days of the mailing date of this Opinion. The party requesting reconsideration must include a detailed explanation of the reasons as to why reconsideration should be granted in conformity with 51 Pa. Code § 21.29(b). By the Commission, Louis W. Fryman Chair