HomeMy WebLinkAbout07-572 FindleyWilliam H. Findley
2022 Pitt Avenue
Johnstown, PA 15905
ADVICE OF COUNSEL
August 17, 2007
07 -572
Dear Mr. Findley:
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 seqq., would present any restrictions upon employment of a
Descriptive Statistical Supervisor following termination of employment with the
Commonwealth of Pennsylvania, Department of Labor and Industry ( "Department of
Labor and Industry ").
Facts: You retired from employment with the Commonwealth of Pennsylvania on
June 29, 2007. Prior to your retirement, you were employed as a Descriptive Statistical
Supervisor in the Center for Workforce Information and Analysis within the Department
of Labor and Industry.
You have submitted copies of your official job description and an organizational
chart for your former Division, the "Coordinating Services and Research Division," within
the Center for Workforce Information and Analysis. The submitted job description and
organizational chart are incorporated herein by reference.
A copy of the job classification specifications for your former position (job code
00830) has been obtained and is also incorporated herein by reference.
You have been offered a job writing articles for the Johnstown Tribune Democrat,
a weekly business publication in Johnstown, Pennsylvania. You state that you would
periodically be asked to write articles for this publication on a broad array of economic -
related topics in the Johnstown area.
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you with regard to writing articles for the Johnstown Tribune Democrat.
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
Findley, 07 -572
August 17, 2007
Page 2
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.
In the former capacity as a Descriptive Statistical Supervisor for the Department
of Labor and Industry, 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 job description and the
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.
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.
Findley, 07 -572
August 17, 2007
Page 3
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 official /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 official /public employee
worked, the name of the former public official /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 or 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 is the Department of Labor and Industry in
its entirety, including but not limited to the Center for Workforce Information and
Analysis. Therefore, for the first year following termination of service with the
Department of Labor and Industry, Section 1103(g) of the Ethics Act would apply and
restrict "representation" of "persons" before the Department of Labor and Industry.
Turning to your specific inquiry, based upon the facts that you have submitted,
you are advised that Section 1103(g) of the Ethics Act would not prohibit you from
writing articles for the Johnstown Tribune Democrat because such activity, in and of
Findley, 07 -572
August 17, 2007
Page 4
itself, would not constitute prohibited "representation" before your former governmental
body.
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: In the former capacity as a Descriptive Statistical Supervisor for the
Commonwealth of Pennsylvania Department of Labor and Industry ( "Department of
Labor and Industry "), you would be considered a "public employee" as that term is
defined in the Public Official and Employee Ethics Act ( "Ethics Act' ), 65 Pa.C.S. § 1101
et seq. Upon retiring from employment with the Commonwealth of Pennsylvania, you
became a "former public employee" subject to Section 1103(g) of the Ethics Act. Your
former governmental body is the Department of Labor and Industry in its entirety.
Based upon the submitted facts, Section 1103(g) of the Ethics Act would not prohibit
you from writing articles for the Johnstown Tribune Democrat because such activity, in
and of itself, would not constitute prohibited "representation" before your 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.
Further, because you have terminated service, 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