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HomeMy WebLinkAbout07-577 ConfidentialADVICE OF COUNSEL August 27, 2007 07 -577 This responds to your letter of July 24, 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 restrictions upon employment of an A following termination of service with Commonwealth Agency B. Facts: You retired from employment with the Commonwealth on [date]. For the last two years prior to your retirement, you were employed with Commonwealth Agency B as an A in Unit C. You have submitted a copy of your official position description, which is incorporated herein by reference. A copy of the job classification specifications for your former position (job code [number]) has been obtained and is also incorporated herein by reference. You state that as an A, you worked in the field directing the D of E projects. Your work was assigned to you by an F. You had Gs from both Commonwealth Agency B and H firm(s) working for you. You state that you had no authority to select the H firm that worked in your area. You seek guidance as to what impact the Ethics Act would have upon your future employment with H firms that do business with Commonwealth Agency B. In particular, you pose the following specific inquiries: 1. Whether your name could appear on invoices for any and all work performed on pre - existing contracts that a H firm would have with Js within Commonwealth Agency B or Ks other than Unit C if you would work only in the H firm's office and have no contact with Commonwealth Agency B; 2. If you would accept employment with a H firm that does business in Unit C, whether you would be permitted to coordinate and staff projects where: (1) you would have contact solely with the H Gs; and (2) your name would not appear on any invoices for such projects; 3. If you should happen to take a job with a company that does business with Commonwealth Agency B, whether you could let your friends who work for Unit C know about your employment; 4. Whether you could ask any Commonwealth Agency B employees general questions about future 1 contracts if your name would not appear on any proposals or billings until one year following your retirement from Commonwealth Agency B; and Confidential Advice, 07 -577 August 27, 2007 Page 2 5. Whether you could work for any H firm of your own choosing. 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. 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 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. Confidential Advice, 07 -577 August 27, 2007 Page 3 "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 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 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, Unit C. Therefore, for the first year following Confidential Advice, 07 -577 August 27, 2007 Page 4 termination of your service with Commonwealth Agency B, Section 1103() of the Ethics Act would apply and restrict "representation" of "persons" before Commonwealth Agency B. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be addressed. In response to your first specific inquiry, you are advised as follows. During the first year following your retirement from Commonwealth Agency B, if you would perform work for a H firm on Commonwealth Agency B contracts that existed before your retirement from Commonwealth Agency B, and if such contracts would not involve Unit C, your name could appear on routine invoices submitted to Commonwealth Agency B as to those particular pre- existing contracts if required by the regulations of Commonwealth Agency B. See, Abrams/Webster supra. As to your second specific inquiry, you are advised as follows. Under the submitted conditions, Section 1103(g) of the Ethics Act would not prohibit you from coordinating and staffing projects that your new employer would have with Commonwealth Agency B in Unit C, provided that you would not engage in any conduct that would constitute prohibited representation as delineated above. In response to your third specific inquiry, you are advised that if you would take a job with a company that does business with Commonwealth Agency B, Section 1103( of the Ethics Act would prohibit you from informing Commonwealth Agency employees -- including but not limited to your friends who work for Unit C - -of your work for the new employer. However, Section 1103(g) of the Ethics Act would not prohibit you from socializing with such friends as long as in so doing, you would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). See, Conti, Opinion 07 -007. As to your fourth inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from making general informational inquiries of Commonwealth Agency B employees about future I contracts provided that: (1) the information you would request would be available to the general public; and (2) such communications would not include prohibited representation as delineated above. In response to your fifth inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from working for a H firm of your own choosing. However, Section 1103(g) of the Ethics Act would restrict your conduct in such a new position to the extent that such conduct would constitute prohibited representation before Commonwealth Agency B as set forth above. 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 /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 Confidential Advice, 07 -577 August 27, 2007 Page 5 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the L. 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 service with Commonwealth Agency B, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is Commonwealth Agency B in its entirety including, but not limited to, Unit C. For one year following termination of Commonwealth employment, Section 1103(g) of the Ethics Act would restrict you from engaging in activity that would constitute prohibited representation before Commonwealth Agency B. The restrictions as to representation outlined above must be followed. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, since service has been terminated, 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