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HomeMy WebLinkAbout07-570 ConfidentialADVICE OF COUNSEL August 16, 2007 07 -570 This responds to your letter of July 10, 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.C.S. § 1101 et seq., would present any restrictions upon a former A for Commonwealth Agency B as to: (1) being compensated by Commonwealth Agency B for testifying on behalf of said agency as an expert witness in a lawsuit; (2) contractually providing expert witness testimony or various other services to Commonwealth Agency B on a "sole source" basis; or (3) returning to work for Commonwealth Agency B as an annuitant. Facts: As a former A for Commonwealth Agency B, you seek an advisory from the State Ethics Commission based upon the following submitted facts. You are a C. From [month and year] to [month and year], you were employed with Commonwealth Agency B in Unit D as an E. In the aforesaid position, you performed Fs of G acquired for H purposes. You state that one of your assignments involved the F of I in J County. On [date], the Commonwealth filed a K to acquire part of the I for an H improvement project. At some time in [year], the owner of the I petitioned for the appointment of an L. You state that from [month and year] until your termination of state service in [month and year], you were employed as an A in the M Office of Commonwealth Agency B. Copies of your position description and the job classification specifications for the position of A (job code [number]) have been obtained, which documents are incorporated herein by reference. You state that in [month and year], you prepared an F report of the I with an effective date of [date]. The F was reviewed by an N, with 0 recommended by the N, and was approved in [year]. In [month and year], you were informed that attempts were being made to schedule the L hearing with respect to the I; however, as of the date you terminated state service in [month and year], no hearing had been scheduled by J County. You state that as of yet, there has been no hearing by the L. Confidential Advice, 07 -570 August 16, 2007 Page 2 Based upon the above submitted facts, you pose the following questions pertaining to the post - employment restrictions of Section 1103(g) of the Ethics Act: 1. Whether you would be permitted to contract with Commonwealth Agency B on a one -time basis for the purpose of preparing for trial and providing expert witness testimony in any pending L or court hearing regarding the aforesaid case, where: (1) the only service that you would provide would be expert testimony regarding the F report of I, which report was prepared, reviewed and approved while you were employed by Commonwealth Agency B; (2) there would be no competitive bidding for such testimony; and (3) you would be compensated for your trial /hearing preparation and testimony based upon the approved rates mandated by a pre- existing statewide contract (P Contract); 2. If you would be permitted to contract with Commonwealth Agency B for the limited purpose of providing expert testimony in the aforesaid case, whether the contract for your testimony would have any impact upon the Section 1103(g) restrictions as to representation before Commonwealth Agency B; 3. Whether you would be permitted to provide the following services to Commonwealth Agency B on what you describe as "a sole source basis ": (1) F services, including the updating of F reports previously prepared, reviewed and approved while you were employed with Commonwealth Agency B; (2) expert witness testimony; or (3) other related services; 4. Whether you could be hired by Commonwealth Agency B as a temporary annuitant to provide necessary F, F review, and /or expert witness services in the above - mentioned case involving the I or in other cases; and 5. If you would return to work with Commonwealth Agency B as a temporary annuitant, whether such service would have any impact upon the Section 1103(g) restrictions as to representation before Commonwealth Agency B, and in particular, whether time worked as an annuitant would cause the one - year period of applicability of Section 1103(g) to begin anew. 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 requestor based upon the facts that the requestor has submitted. In issuing the advisory based upon the facts that the requestor 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 requestor 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 requestor has truthfully disclosed all of the material facts. In the former capacity as an A for Commonwealth Agency B, you would be considered a "public 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. This conclusion is based upon the position description and job classification specifications, which when reviewed on an objective basis, indicate 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. Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Confidential Advice, 07 -570 August 16, 2007 Page 3 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 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 /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 Confidential Advice, 07 -570 August 16, 2007 Page 4 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 public official /public employee may not be identified on documents submitted to the former governmental body. The 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 /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 Commonwealth Agency B in its entirety, including but not limited to the M Office. Therefore, for the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Commonwealth Agency B. Having established the above general principles, your specific questions shall be now be addressed. In response to your first three specific questions, you are advised as follows. Generally, Section 1103(g) of the Ethics Act prohibits a former public official /public employee from entering into a contractual arrangement with the former governmental body during the one -year period of applicability of the restrictions. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. However, there are certain recognized exceptions. The Commission has specifically held that the Section 1103(g) restrictions would not prohibit a former public official /public employee from entering into a contract with his former governmental body to act as an impartial arbitrator between the former governmental body and labor unions, based upon the Commission's reasoning that as an impartial arbitrator, such individual would not be involved in representational activity. Confidential Opinion, 92 -005. In Buchy, Advice 00 -508, it was determined that Section 1103(g) of the Ethics Act would not preclude a former Senior Civil Engineer Manager for PennDOT from receiving compensation for his testimony as a fact witness in a lawsuit where he would be testifying on behalf of PennDOT before the Board of Claims, the latter of which was not his former governmental body. Confidential Advice, 07 -570 August 16, 2007 Page 5 Based upon the above, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from entering into a contractual arrangement to provide services strictly limited to preparing and providing testimony as an expert witness on behalf of Commonwealth Agency B in an L or court hearing regarding the F report of the aforesaid I or other matters. To the extent you would enter into such a limited contract with your former governmental body, such contract would not impact the Section 1103(g) restrictions. For purposes of addressing your inquiry under the Ethics Act, it is not necessary to address whether such a contract would occur on a one -time basis or through a sole source contract. During the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would prohibit you from entering into a contractual arrangement to provide other services to Commonwealth Agency B, including but not limited to F services or the updating of F reports previously prepared, reviewed and approved while you were employed with Commonwealth Agency B. In response to your fourth and fifth specific inquiries, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from returning to employment with Commonwealth Agency B as a temporary annuitant providing Fs, F reviews, or expert witness services. However, as an annuitant providing these services, you would again become a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. Each time you would cease providing such services as an annuitant /public employee, you would once again become a former public employee subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) would commence anew. See, Graves, supra; McGlathery, supra. Based upon the facts that have been submitted, this Advice 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 /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 Q. Conclusion: In the former capacity as an A for Commonwealth Agency B, you would be considered a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. §1101 et seq. Upon termination of employment with Commonwealth Agency B, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Commonwealth Agency B in its entirety including, but not limited to, the M Office. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from entering into a contractual arrangement to provide services strictly limited to preparing and providing testimony as an expert witness on behalf of Commonwealth Agency B in an L or court hearing. Section 1103(g) of the Ethics Act would prohibit you from entering into a contractual arrangement to provide other services- - including but not limited to F services or the updating of F reports - -to Commonwealth Agency B during the first year following termination of your employment with Confidential Advice, 07 -570 August 16, 2007 Page 6 Commonwealth Agency B. Section 1103(g) of the Ethics Act would not prohibit you from returning to employment with Commonwealth Agency B as a temporary annuitant providing Fs, F reviews, or expert witness services. As an annuitant providing these services, you would again become a "public employee" subject to the Ethics Act. Each time you would cease providing such services as an annuitant /public employee, you would once again become a former public employee subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) would commence anew. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, since 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), 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 requestor 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