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HomeMy WebLinkAbout07-580 MacKinnonAllan MacKinnon 16 Stone Run Drive Mechanicsburg, PA 17050 Dear Mr. MacKinnon: ADVICE OF COUNSEL August 31, 2007 07 -580 This responds to your letters of July 9, 2007, and July 31, 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 an Information Technology Policy Specialist 1 following termination of employment with the Governor's Office of Administration, Office for Information Technology. Facts: You request an advisory from the State Ethics Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. From June 4, 2006, to June 22, 2007, you were employed by the Commonwealth of Pennsylvania ( "Commonwealth ") as an Information Technology ( "IT ") Policy Specialist 1 with the Governor's Office of Administration ("OA"), Office for Information Technology ("OIT "). You worked within the Bureau of Enterprise Architecture ( "Bureau "). You have submitted copies of your official position description and the job classification specifications (job code 01982) for your former position, both of which documents are incorporated herein by reference. Per your official position description, your duties and responsibilities included the following: • Advising other Enterprise Architecture Team members, Agency personnel, and IT managers on security - related matters; • Assisting in the development of a comprehensive security plan and an awareness program that continually educates and reinforces sound security practices; • Serving in a consultative capacity for major IT projects as well as assisting the Agencies in meeting their data and application security requirements; MacKinnon, 07 -580 August 31, 2007 Page 2 • Supporting all aspects of IT Security including Information, Network, and Physical and Security Policies at an Enterprise level; and • Lead selected Enterprise Architecture Standards Committee work groups as assigned by the Chief Information Security Officer and report recommendations. Per the job classification specifications under job code 01982, an IT Policy Specialist 1: • Performs advanced professional work in IT policy analysis, development, and technical consulting for Commonwealth enterprise rise and inter- agency IT resource management in OA, or for Agency wide IT management within an Agency Policy or Chief Information Officer's office; • Develops IT strategies, policies, and plans for the Commonwealth enterprise or agency; • Develops, designs, and conducts analytical studies of complex policy issues, problems, trends, and resource needs which have a significant impact on enterprise IT resource management and agency practices; • Reviews agency IT plans /requests to determine their feasibility, the efficient use of resources, and consistency with statewide initiatives; • Drafts policies, legislation, regulations, directives, and program proposals required to implement IT policies; • Serves as lead analyst on selected projects, and is responsible for project results; • Manages outsourced contracts and vendors to implement IT programs and policy; and • Supervises lower level Specialists and Associates. The required abilities of an IT Policy Specialist 1 include the ability to interpret and apply the Commonwealth's policies and procedures for procuring IT commodities and services. You state that as an IT Policy Specialist 1, you managed projects and assisted with the development of Information Technology Bulletins for the Bureau. As of June 25, 2007, you have been employed as an Account Technology Specialist for the Microsoft Corporation ( "Microsoft "). As part of the account team that supports Pennsylvania state and local government accounts, you are responsible for assisting entities throughout the Commonwealth in their evaluation, deployment and effective use of Microsoft technologies. You also have other responsibilities such as delivering training and providing demonstrations and presentations on Microsoft technologies. You state that in your former position as an IT Policy Specialist 1 with the Commonwealth, you did not interact with representatives of Microsoft on any of the projects that you managed. You seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to your activities in your position with Microsoft. In particular, you pose the following specific inquiries: MacKinnon, 07 -580 August 31, 2007 Page 3 1 Whether, in your former capacity as an IT Policy Specialist 1 with the Commonwealth, you would be considered a "public employee" as that term is defined in the Ethics Act; 2. If, as an IT Policy Specialist 1 with the Commonwealth, you were a "public employee" subject to the Ethics Act, whether your "former governmental body" is limited to OIT; 3. Whether, in your new capacity as a Microsoft employee, the post - employment restrictions of the Ethics Act would only exclude you from working with OIT; 4. Whether the Ethics Act would prohibit you from providing training on Microsoft technologies to other Commonwealth agencies where OIT employees might be in attendance but would not necessarily be the primary audience (such as a Microsoft - specific class or presentation that would be available to all Commonwealth agencies, including OIT); 5. Whether there would be any restrictions upon you with regard to providing Microsoft technology training in an OIT facility such as the Commonwealth Technology Center; and 6. Whether the Ethics Act would present any restrictions upon you with regard to attending and /or participating in providing information on Microsoft technologies at public events sponsored by the Commonwealth or given on behalf of the Commonwealth, where OIT employees might be in attendance but would not be the sole or primary audience (such as the Pennsylvania Digital Summit or the Information Technology Conference). 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. It is further initially noted that, pursuant to the same aforesaid Sections of the Ethics Act, an advisory opinion may be given only as to prospective (future) conduct. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In responding to your inquiry, the threshold question to be addressed is whether, in the former capacity as an IT Policy Specialist 1 for OA, you would be considered a "public employee" subject to the Ethics Act. The Ethics Act defines the term "public employee" as follows: § 1102. Definitions "Public employee." Any individual employed by the Commonwealth or a political subdivision who is responsible for taking or recommending official action of a nonministerial nature with regard to: MacKinnon, 07 -580 August 31, 2007 Page 4 (1) contracting or procurement; (2) administering or monitoring grants or subsidies; (3) planning or zoning; (4) inspecting, licensing, regulating or auditing any person; or (5) any other activity where the official action has an economic impact of greater than a de minimis nature on the interests of any person. The term shall not include individuals who are employed by this Commonwealth or any political subdivision thereof in teaching as distinguished from administrative duties. 65 Pa. C. S. § 1102. The Regulations of the State Ethics Commission similarly define the term "public employee" and set forth the following additional criteria: (ii) The following criteria will be used, in part, to determine whether an individual is within the definition of "public employe ": (A) The individual normally performs his responsibility in the field without onsite supervision. (B) The individual is the immediate supervisor of a person who normally performs his responsibility in the field without onsite supervision. (C) The individual is the supervisor of a highest level field office. (D) The individual has the authority to make final decisions. (E) The individual has the authority to forward or stop recommendations from being sent to the person or body with the authority to make final decisions. (F) The individual prepares or supervises the preparation of final recommendations. (G) The individual makes final technical recommen- dations. (H) The individual's recommendations or actions are an inherent and recurring part of his position. (1) The individual's recommendations or actions affect organizations other than his own organization. (iii) The term does not include individuals who are employed by the Commonwealth or a political subdivision of MacKinnon, 07 -580 August 31, 2007 Page 5 the Commonwealth in teaching as distinguished from administrative duties. (iv) Persons in the following positions are generally considered public employes: (A) Executive and special directors or assistants reporting directly to the agency head or governing body. (B) Commonwealth bureau directors, division chiefs or heads of equivalent organization elements and other governmental body department heads. (C) Staff attorneys engaged in representing the department, agency or other governmental bodies. (D) Engineers, managers and secretary- treasurers acting as managers, police chiefs, chief clerks, chief purchasing agents, grant and contract managers, administrative officers, housing and building inspectors, investigators, auditors, sewer enforcement officers and zoning officers in all governmental bodies. (E) Court administrators, assistants for fiscal affairs and deputies for the minor judiciary. (F) School superintendents, assistant superintendents, school business managers and principals. (G) Persons who report directly to heads of executive, legislative and independent agencies, boards and commissions except clerical personnel. (v) Persons in the following positions are generally not considered public employes: (A) City clerks, other clerical staff, road masters, secretaries, police officers, maintenance workers, construction workers, equipment operators and recreation directors. (B) Law clerks, court criers, court reporters, probation officers, security guards and writ servers. (C) School teachers and clerks of the schools. 51 Pa. Code § 11.1. Status as a "public employee" subject to the Ethics Act is determined by an objective test. The objective test applies the Ethics Act's definition of the term "public employee" and the related regulatory criteria to the powers and duties of the position itself. Typically, the powers and duties of the position are established by objective sources that define the position, such as the job description, job classification specifications, and organizational chart. The objective test considers what an individual has the authority to do in a given position based upon these objective sources, rather than the variable functions that the individual may actually perform in the position. See, Philips v. State Ethics Commission, 470 A.2d 659 (Pa. Cmwlth. 1984); Eiben, Opinion 04 -002; Shienvold, Opinion 04 -001; Shearer, Opinion 03 -011. The Commonwealth Court of Pennsylvania has specifically considered and approved this Commission's objective MacKinnon, 07 -580 August 31, 2007 Page 6 test and has directed that coverage under the Ethics Act be construed broadly and that exclusions under the Ethics Act be construed narrowly. See, Phillips, supra. The first portion of the statutory definition of "public employee" includes individuals with authority to take or recommend official action of a nonministerial nature. 65 Pa.C.S. § 1102. Likewise, the regulatory criteria for determining status as a public employee, as set forth in 51 Pa. Code § 11.1( "public employee ")(ii), include not only individuals with authority to make final decisions but also individuals with authority to forward or stop recommendations from being sent to final decision - makers; individuals who prepare or supervise the preparation of final recommendations; individuals who make final technical recommendations; and individuals whose recommendations are an inherent and recurring part of their positions. See, e.q., Reese /Gilliland, Opinion 05- 005. Based upon the above judicial directives, the provisions of the Ethics Act, the State Ethics Commission Regulations, and the opinions of the State Ethics Commission, in light of your duties and responsibilities, the necessary conclusion is that in the former capacity as an IT Policy Specialist 1 for OA, you were a "public employee" subject to the Ethics Act. In the capacity as an IT Policy Specialist 1, you had the ability to take or recommend official action with respect to subparagraph (5) within the definition of "public employee" as set forth in the Ethics Act, 65 Pa.C.S. § 1102. Specifically, the following duties set forth in the position description and job classification specifications would be sufficient to establish status as a "public employee" subject to the Ethics Act: • Serving in a consultative capacity for major IT projects and assisting Agencies in meeting their data and application security requirements; • Supporting all aspects of IT Security including Information, Network, and Physical and Security Policies at an Enterprise level; • Drafting policies, legislation, regulations, directives, and program proposals required to implement IT policies; and • Managing outsourced contracts and vendors to implement IT programs and policies. Consequently, upon termination of Commonwealth employment, 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: MacKinnon, 07 -580 August 31, 2007 Page 7 § 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 if the invoices pertain to a contract that existed prior to termination of service with such governmental body. 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. MacKinnon, 07 -580 August 31, 2007 Page 8 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 are deemed to have been associated upon termination of Commonwealth employment is OA in its entirety, including but not limited to OIT. Therefore, for the first year following termination of Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before OA. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiries shall be considered. You first two specific inquiries have been addressed above. In response to your third specific inquiry, you are advised that Section 1103(g) of the Ethics Act would apply to restrict you from engaging in prohibited "representation" before OA, including but not limited to OIT. However, based upon the submitted facts, Section 1103(g) would not apply to restrict you as to other governmental bodies. As to your fourth specific inquiry, you are advised as follows. In providing training or making a presentation on Microsoft technologies, you would be acting on behalf of Microsoft and therefore representing Microsoft. As such, you would be engaging in "representation" before the attendees. You are advised that where an OIT employee or other employee of OA would attend a training or presentation on Microsoft technologies that you would provide, you would be engaging in prohibited representation before your former governmental body. In response to your fifth specific inquiry, you are advised that it would be difficult if not impossible, as a practical matter, for you to conduct training at an OIT facility without running afoul of the prohibitions of Section 1103(g) of the Ethics Act. Under such a scenario, it would seem inevitable that you would reveal to your former governmental body that you are employed with Microsoft. Cf., Metzgar, Opinion 06- 002; Ziegler, Opinion 98 -001. As to your sixth specific inquiry, you are advised that Section 1103(g) of the Ethics Act would not prohibit you from attending and /or participating in providing information on Microsoft technologies at public events sponsored by the Commonwealth or given on behalf of the Commonwealth as long as in so doing, you would not engage in prohibited representation before your former governmental body. If employee(s) of OA would be in attendance at such an event, it would be difficult if not impossible as a practical matter for you to attend and /or participate in the event without running afoul of Section 1103(g) of the Ethics Act. 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 MacKinnon, 07 -580 August 31, 2007 Page 9 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 Governor's Code of Conduct. Conclusion: In the former capacity as an Information Technology ( "IT ") Policy Specialist 1 with the Commonwealth of Pennsylvania ( "Commonwealth "), Governor's Office of Administration ( "OA "), Office for Information Technology ( "OIT "), you would be considered a "public employee" as that term is defined by the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of Commonwealth employment, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body is OA in its entirety, including but not limited to OIT. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before OA for one year following termination of Commonwealth employment. 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, since the aforesaid Commonwealth employment 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 such employment. 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