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HomeMy WebLinkAbout07-567 MartzJoseph S. Martz 3213 West Coulter Street Philadelphia, PA 19129 Dear Mr. Martz: ADVICE OF COUNSEL August 10, 2007 07 -567 This responds to your letter of July 11, 2007, 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., would present any restrictions upon employment of the Secretary of Administration for the Commonwealth of Pennsylvania following termination of Commonwealth service. Facts: At the time you submitted your inquiry, you were serving as the Secretary of Administration for the Commonwealth of Pennsylvania. You stated that you would be resigning from your position effective July 13, 2007. The Secretary of Administration is a Member of the Governor's Cabinet. The Secretary of Administration serves as the head the Governor's Office of Administration ("OA "). OA is under the direct supervision of the Secretary of Administration. The Secretary of Administration reports to the Governor. You state that OA was established within the Governor's Office in 1955. OA provides policy direction and administrative support to all agencies under the Governor's jurisdiction. You describe OA as an agency that has responsibility for the managerial functions that the Governor is expected to perform. You state that OA is the non - financial operating arm of state government." Specific functions of OA include information technology, labor relations and human resource management, and management consulting. OA also directs equal employment opportunity efforts within all state agencies and provides direct administrative support services to other organizations in the Governor's Executive Office. You have submitted an organizational chart for OA, which is incorporated herein by reference. It is administratively noted that the Secretary of Administration is a member of the Governor's Office Executive Staff. The Secretary of Administration serves on numerous boards /committees /councils, including: the Enterprise Information Technology Board, 4 Pa. Code § 6.243; the Commonwealth Continuity of Government Steering Committee, 4 Pa. Code § 6.52; the Governor's Homeland Security and Emergency Preparedness Executive Cabinet, 4 Pa. Code § 6.44; the Pennsylvania Council for Sexual Minorities, 4 Martz, 07 -567 August 10, 2007 Page 2 Pa. Code § 5.92; and the Management and Productivity Improvement Council, 4 Pa. Code § 1.494. Additionally, the Secretary of Administration serves as Secretary of the Executive Board, 4 Pa. Code § 39.31. You seek advice as to whether, following termination of Commonwealth service, the Ethics Act would impose any restrictions upon you with regard to communicating with the Governor's Office, the Governor's Cabinet, and various other officials of the Commonwealth. 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. As the Secretary of Administration for the Commonwealth of Pennsylvania, you would be considered a public official /public employee and an "executive -level State 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 would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: § 1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this 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. 65 Pa.C.S. § 1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation provided and conditioned upon the assumptions that you did not actively participate in recruiting the business or Martz, 07 -567 August 10, 2007 Page 3 corporation to Pennsylvania, and that you did not actively participate in inducing the business or corporation to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Unlike Section 1103(i), Section 1103(g) of the Ethics Act does not prohibit a former public official /public employee from accepting a position of employment. However, 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 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 Martz, 07 -567 August 10, 2007 Page 4 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. The governmental bodies with which you would be deemed to have been associated upon termination of public service, hereinafter collectively referred to as your "former governmental body," would be: the Governor's Cabinet, the Governor's Office in its entirety, OA in its entirety, and all commissions, committees, councils, and boards on which you served, including but not limited to those specifically identified herein. Therefore, for the first year following termination of your service with the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your "former governmental body" as delineated above. Section 1103(g) of the Ethics Act would not prohibit you from socializing with former colleagues as long as in so doing, you would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). Conti, Opinion 07 -007. Based upon the facts that have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 1103(i) of the Ethics Act 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 Martz, 07 -567 August 10, 2007 Page 5 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: Upon termination of service as the Secretary of Administration for the Commonwealth of Pennsylvania, you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Under Section 1103(i) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation based upon the assumptions that you did not actively participate in recruiting the business or corporation to Pennsylvania, and that you did not actively participate in inducing the business or corporation to open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. The restrictions of Section 1103(g) of the Ethics Act as outlined above must be followed. The governmental bodies with which you would be deemed to have been associated upon termination of public service, hereinafter collectively referred to as your "former governmental body,' would be: the Governor's Cabinet, the Governor's Office in its entirety, OA in its entirety, and all commissions, committees, councils, and boards on which you served, including but not limited to those specifically identified within this advisory. Therefore, for the first year following termination of service as the Secretary of Administration for the Commonwealth of Pennsylvania, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your "former governmental body' as delineated above. The propriety of the proposed conduct has only been addressed under the Ethics Act. Further, to the extent service has been 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) of the Ethics Act, 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 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, Martz, 07 -567 August 10, 2007 Page 6 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, Robin M. Hittie Chief Counsel