Request for Advice Our File No. A-98-295 Dear Mr. Bell



Download 17.25 Kb.
Date conversion19.05.2016
Size17.25 Kb.
December 28, 1998

Charles H. Bell

Bell, McAndrews & Hiltachk

455 Capitol Mall, Suite 801

Sacramento, California 95814
Re: Your Request for Advice

Our File No. A-98-295
Dear Mr. Bell:
This letter is in response to your request for advice on the behalf of Mr. Donald W. Murphy regarding the provisions of the Political Reform Act (the “Act”).1 Please note that the Commission does not provide advice regarding past conduct. (Regulation 18329.)
QUESTIONS
1. What post-employment restrictions does the Act place on Mr. Murphy’s ability to represent the Hearst Monument Foundation before the Department of Parks and Recreation?
2. Specifically, may Mr. Murphy participate in contract compliance activities, including unlimited communications with department staff, with respect to the administration and performance of the licensing/operating agreement between the Hearst Monument Foundation and the Department of Parks and Recreation?
CONCLUSIONS
1. As of December 13, 1998, Mr. Murphy is no longer subject to the one-year revolving door prohibitions of Section 87406. Mr. Murphy is still subject to the permanent ban prohibitions of Sections 87401 and 87402.


2. Yes. Mr. Murphy may participate in contract compliance activities, including unlimited communications with department staff, with respect to the administration and performance of the licensing/operating agreement between the Hearst Monument Foundation and the Department of Parks and Recreation.
FACTS
On February 1, 1998, Donald W. Murphy became the Executive Director of the Hearst Monument Foundation (the “HMF”). Mr. Murphy served as Director of the Department of Parks and Recreation (the “department”) from December 31, 199,1 to December 12, 1997. The HMF was established in 1992 as an exempt Section 501(c)(3) organization. The HMF is dedicated to the preservation, restoration and enhancement of Hearst Castle.
The department and the HMF entered into a licensing/operating agreement (dated December 23, 1991), prior to Mr. Murphy's tenure at the department, and a licensing agreement dated April 12, 1996. Under the licensing/operating agreements, the HMF has utilized the state's logo. This agreement is not unique, and prior to Mr. Murphy's departure from the department in December 1997, the department had been involved in updating its licensing/operating agreements with a variety of private and nonprofit groups which operate in similar fashion at other sites in California of a similar nature. The department and the HMF had commenced discussions about updating the agreements with the HMF as well.
Since becoming the executive director of the HMF, Mr. Murphy has recused himself from any participation in the discussions, negotiations, and drafting of an amended licensing/operating agreement between the department and the HMF. That amended licensing/operating agreement has now been finalized, without Mr. Murphy's participation.

Mr. Murphy has not participated in discussions about the department's actions or views as to the parties' rights and obligations under those existing agreements during their term.


While at the department, Mr. Murphy also participated in the negotiation and awarding of the contract to operate a large screen theater at Hearst Castle, the iWERKS theater. In fact, the iWERKS theater was constructed and became operational while Mr. Murphy was with the department. As executive director of the HMF, Mr. Murphy has no relationship or interaction with the contractor, Destination Cinema.
Finally, it is understood that Mr. Murphy could not for compensation participate in any “proceedings” involving the department, but not involving the HMF, in which he participated while director of the department.


ANALYSIS
Your letter concerns the post-employment restrictions of the Act as they relate to

Mr. Murphy’s ability to work for and represent the HMF. (Sections 87400 et seq.) The



post-employment restrictions limit the type of contact a person may have with their former agency. Specifically, there is the one-year revolving door prohibition and the permanent prohibition on switching sides in a proceeding. We will discuss each in turn.
The One-Year Ban
Section 87406 restricts the type of contact a former employee of a state agency may have with his or her former agency for a period of 12 months after leaving state service. Mr. Murphy left the department on December 12, 1997. Since the 12-month period has passed, Section 87406 is no longer applicable to Mr. Murphy.
The Permanent Ban on Switching Sides
Sections 87400-87405 provide for a permanent prohibition on influencing any judicial or other proceeding in which Mr. Murphy participated in while in state service. Pursuant to Sections 87401 and 87402, Mr. Murphy may not act as attorney or agent for or otherwise represent or advise the HMF in any “judicial, quasi-judicial or other proceeding” in which he participated in while at the department and in which the State of California is a party. As the former director of the department, Mr. Murphy is deemed to have participated in any proceeding in which he actually participated2 and any proceeding that was handled during his tenure as the director of the department. (Brown Advice Letter, No. A-91-033.) Further, Mr. Murphy may not aid, advise, counsel, consult or assist in representing any other person with the intent to influence the outcome of a proceeding in which he participated. (Section 87402.)
Section 87400(c) defines judicial, quasi-judicial or other proceeding to mean:
“[a]ny proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties in any court or state administrative agency ....”

You have noted that Mr. Murphy had participated in two different proceedings while still with the department. The first proceeding involved the renegotiating of a licensing/operating agreement between the HMF and the department. An amended licensing/operating agreement has been finalized between the HMF and the department. You also note that while with the department, Mr. Murphy participated in the negotiation and awarding of the contract to operate a large screen theater at the Hearst Castle.
Since the licensing/operating agreement has been finalized, the proceeding in which Mr. Murphy had participated is now complete. Therefore, he may participate in any manner in any issue involving the licensing/operating agreement, including unlimited communications with the department. You state that it is unlikely that Mr. Murphy may become involved with any new proceeding involving the large screen theater at the Hearst Castle. Nonetheless, we would like to make it clear that Mr. Murphy may communicate with the department and/or any other person regarding the large screen theater at the Hearst Castle, since any proceeding(s) that

Mr. Murphy may have participated in while at the department are now completed.


If you have any other questions regarding this matter, please contact me at

(916) 322-5660.


Sincerely,


Steven G. Churchwell

General Counsel


By: Marte Castaños



Staff Counsel, Legal Division
SGC:MC:tls

1 Government Code sections 81000 - 91014. Commission regulations appear at title 2, sections 18109 - 18995, of the California Code of Regulations.

2 Section 87400(d) states that “participated means to have taken part personally and substantially through decision, approval, disapproval, formal written recommendation, rendering advice on a substantial basis, investigation or use of confidential information as an officer or employee, but excluding approval, disapproval or rendering of legal advisory opinions to departmental or agency staff which do not involve a specific party or parties.”


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page