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HomeMy WebLinkAbout07-569ADVICE OF COUNSEL August 14, 2007 07 -569 This responds to your letter of June 28, 2007, and your faxed transmissions received July 13, 2007, and July 17, 2007, by which you requested confidential 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 prohibitions or restrictions upon employment of an A following termination of service with a B of a Governmental Body C. Facts: As an A to Public Official D, a B of Governmental Body C of Political S ubdivision E, you request an advisory from the State Ethics Commission regarding the post - employment restrictions of Section 1103(g) of the Ethics Act. You have submitted copies of your current job description and an organizational chart for the F of Public Official D, which documents are incorporated herein by reference. You state that your responsibilities as an A include: [list of duties]. In your current position, you serve at the discretion of Public Official D, who appointed you to your position. You state that you do not oversee any employee /staff member. You note that you have filed a Statement of Financial Interests for calendar year 2006. You are considering leaving your public position to become a partner in a private company, G ( "the Company "). The Company provides public and government relations consulting services to [type of businesses], among others. You state that the Company's goal is to [quote]. The Company's services include coordinating meetings with appointed and elected government officials to discuss and solve problems, connecting clients with community leaders, determining necessary permits, and assisting in media and public relations. The Company's clients include [list of types of entities] and Governmental Body C. Noting that you are not an attorney, you pose the following questions: (1) Whether, in your current position, you would be considered a public official or public employee subject to the Ethics Act, such that upon leaving your current position to join the Company as a partner, you would become subject to the prohibitions of Section 1103(g) of the Ethics Act; Confidential Advice, 07 -569 August 14, 2007 Page 2 (2) To the extent Section 1103(g) of the Ethics Act would apply to you, whether the governmental body with which you would be deemed to have been associated would be limited to Governmental Body C or would also include the administrative /executive agencies of Political Subdivision E, such as the H or the I; and To the extent Section 1103(g) of the Ethics Act would apply to you, whether you would be limited in representing a client before: (a) Governmental Body C; or (b) an agency of Political Subdivision E, such as the H, the I, or the J. You state that Sections [cites] of the H create a clear separation between the legislative branch and the administrative and executive branch of Political Subdivision E government. You contend that under Section [cite] of the H, your appointing power is Governmental Body C. It is administratively noted that the aforesaid Sections of the H provide in pertinent part as follows: [Quote and Cite]. [Quote and Cite]. [Quote and Cite]. 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 an A to Public Official D, you are a public official /public employee subject to the provisions of the Ethics Act. This conclusion is based upon the submitted fact that you were appointed to your position by Public Official D and upon the job description, which when reviewed on an objective basis, indicates clearly that the power exists to take or recommend official action of a non - ministerial nature with respect to one or more of the following: contracting; procurement; planning; inspecting; administering or monitoring grants; leasing; regulating; auditing; or other activities where the economic impact is greater than de minimis on the interests of another person. If you would terminate employment in your aforesaid public position to become a partner in the Company, you would become 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 ": (3) § 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 Confidential Advice, 07 -569 August 14, 2007 Page 3 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 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 Confidential Advice, 07 -569 August 14, 2007 Page 4 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 would be deemed to have been associated upon termination of public service would be Governmental Body C in its entirety. Therefore, for the first year following your termination of public service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" — including but not limited to the Company and clients of the Company— before Governmental Body C. With respect to the submitted fact that Governmental Body C is a client of the Company, you are advised that you would be prohibited from performing work for Governmental Body C, on behalf of the Company, to the extent your activities would constitute prohibited representation as defined above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. Your first specific inquiry has been addressed above. In response to your second specific inquiry, you are advised that under the submitted facts, the agencies in the executive and administrative branch of Political Subdivision E would not be considered part of the governmental body with which you would be deemed to have been associated upon termination of public service. In response to your third specific inquiry, you are advised that during the first year following termination of service in your public position, Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that would constitute prohibited representation of the Company or a client before Governmental Body C. Section 1103(g) of the Ethics Act would only apply to restrict you from engaging in prohibited "representation" before Governmental Body C and would not apply as to agencies in the executive and administrative branch of Political Subdivision E. However, where such agencies would have involvement with Governmental Body C, you would have to exercise caution to ensure that you would not engage in prohibited representation before Governmental Body C. 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 potential applicability of any restrictions contained within the H or K. Confidential Advice, 07 -569 August 14, 2007 Page 5 Conclusion: As an A to Public Official D, a B of Governmental Body C of Political Subdivision E, you would be considered a public official /public employee subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. If you would terminate employment in your aforesaid public position to become a partner in a private company, G ( "the Company "), you would become a "former public official /public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Governmental Body C in its entirety. The agencies in the executive and administrative branch of Political Subdivision E would not be considered part of the governmental body with which you would be deemed to have been associated upon termination of public service. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would prohibit you from performing any job duties that would constitute prohibited representation of the Company or a client before Governmental Body C. Section 1103(g) of the Ethics Act would only apply to restrict you from engaging in prohibited "representation" before Governmental Body C and would not apply as to agencies in the executive and administrative branch of Political Subdivision E. However, where such agencies would have involvement with Governmental Body C, you would have to exercise caution to ensure that you would not engage in prohibited representation before Governmental Body C. Act. The propriety of the proposed conduct has only been addressed under the Ethics 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 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, Robin M. Hittie Chief Counsel