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HomeMy WebLinkAbout07-595 ConfidentialADVICE OF COUNSEL November 21, 2007 07 -595 This responds to your letter of October 19, 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 a former A for Commonwealth Agency B with regard to being identified by name, title, or state C number on documents submitted to Commonwealth Agency B by: (1) the former public employee himself; (2) private property owners for whom the former public employee would perform D services; or (3) a private Q for which the former public employee would perform D services as a subcontractor on a Commonwealth Agency B project. Facts: As a former A for Commonwealth Agency B, you seek an advisory from the tate Ethics Commission. It is administratively noted that you previously obtained an Advice of Counsel, Confidential Advice, 06 -597, issued November 17, 2006, regarding the restrictions of Section 1103(g) of the Ethics Act. You appealed Confidential Advice, 06 -597 to the full Commission. On January 8, 2007, the Commission considered the appeal and affirmed said Confidential Advice in Confidential Opinion, 07 -001. It is further administratively noted that you obtained a second Advice of Counsel, Confidential Advice, 07 -570, issued August 16, 2007, regarding the post - employment restrictions of Section 1103(g) of the Ethics Act. You began employment as an E with Commonwealth Agency B in month, year]. At the time that you terminated service with Commonwealth Agency B in [month, year], you were employed as an A. Copies of your official Commonwealth Agency B position description and the job classification specifications for the position of A (job code [number]) have previously been submitted or obtained, which documents are incorporated herein by reference. Following termination of state service, you began employment with a private firm specializing in F G, H and I. You state that private property owners have requested that you perform J, J review and J consulting services in connection with proposed Gs by Commonwealth Agency B. You state that it is your understanding that the Ethics Act would not prohibit you from performing such services. You state that pursuant to Section [number] of the F Code, [cite], the owners of Pennsylvania properties that are subject to G by the Commonwealth are eligible for Confidential Advice, 07 -595 November 21, 2007 Page 2 reimbursement of reasonable J, K and /or L fees up to a maximum amount of $[amount]. You express your view that private property owners for whom you would perform - related services would be eligible for reimbursement of the cost of such services under the aforesaid Section of the F Code. You state that affected property owners may either pay for J, K or M services and request subsequent reimbursement from the N agency (in this case Commonwealth Agency B), or may request direct payment of such expenses by the N agency via written authorization. You further state that in order to process requests for direct payment or reimbursement of J services, several, but not all, Commonwealth Agency B O Offices require that the P providing such services be identified in writing by name and state J C number (hereinafter referred to as "state C number "). Based upon the above submitted facts, you pose the following specific questions: 1. Whether you would be permitted to identify yourself to Commonwealth Agency B by name, title, or state C number during the initial year after termination of your state service if such identification would be provided in the course of rendering professional services to a private individual. 2. Whether you would be permitted to identify yourself to Commonwealth Agency B by name, title, or state C number after the initial year following your termination of state service if such identification would be provided for professional services rendered to a private individual during the initial year following termination of your state service. 3. Whether it would constitute prohibited representation under the Ethics Act if a private property owner and not you would identify you to Commonwealth Agency B (by your name, title, or state C number) during the initial year after your termination of state service. 4. Whether it would constitute prohibited representation under the Ethics Act if a private property owner and not you would identify you to Commonwealth Agency B (by your name, title, or state C number) after the initial year following your termination of state service if such identification would be provided for professional services rendered to such private property owner during the initial year following your termination of state service. 5. Whether you would be permitted to identify yourself not by name but only by title or state C number on documents submitted to Commonwealth Agency B; 6. Whether it would constitute prohibited representation if a private property owner would upon request provide to Commonwealth Agency B a copy of a J, J review and /or J consulting report containing your name, title, and /or state C number; 7 Whether you would be permitted to identify yourself on documents, if only by title or state C number, where such information would be provided not to Commonwealth Agency B but instead to a private, third party Q hired by Commonwealth Agency B; and 8. Whether you would be permitted to identify yourself by name, title, and /or state C number on documents submitted by you to a private K Q hired for a project by Commonwealth Agency B, where your services would be provided as a subcontractor to the private Q on the Commonwealth Confidential Advice, 07 -595 November 21, 2007 Page 3 Agency B project; and whether it would constitute prohibited representation if such a private Q would in turn submit documents to Commonwealth Agency B that identified you by name, title, state C number, and /or other means. With respect to your questions numbered 1 through 4 above, you state that the identifying information would be provided to Commonwealth Agency B only for the purpose of obtaining direct payment or reimbursement of expenses for J services under Section [number] of the F Code. 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 noted in Confidential Advice, 06 -597, Confidential Opinion, 07 -001, and Confidential Advice, 07 -570, 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 Consequently, upon termination of public service, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. See, Confidential Advice, 06- 597, Confidential Opinion, 07 -001, and Confidential Advice, 07 -570. 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. Confidential Advice, 07 -595 November 21, 2007 Page 4 "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. 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 Confidential Advice, 07 -595 November 21, 2007 Page 5 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 public service is Commonwealth Agency B in its entirety. See, Confidential Advice, 06 -597, Confidential Opinion, 07 -001, and Confidential Advice, 07 -570. Therefore, for the first year following termination of service with C ommonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Commonwealth Agency B. Id. As noted in Confidential Advice, 07 -570, Section 1103(g) of the Ethics Act would not prohibit you from returning to employment with Commonwealth Agency B as a temporary annuitant providing Js, J 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. Having established the above rinciples, your specific inquiries shall be addressed under Section 1103(g) of the Ethics Act. You are advised that during a period of applicability of Section 1103(g) of the Ethics Act, you would be restricted from engaging in prohibited "representation" of a client before Commonwealth Agency B, regardless of when you provided the related J, J review, or J consulting services to the client. Thus, in response to your first two specific inquiries, you are advised as follows. During a period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from submitting any information to Commonwealth Agency B -- including but not limited to your name or state C number - -that would identify you as the provider of J services to a private individual or entity seeking direct payment or reimbursement of J fees from Commonwealth Agency B under the F Code. During such time(s) that Section 1103(g) of the Ethics Act would not apply to you, Section 1103(g) of the Ethics Act would not restrict you from submitting information to Commonwealth Agency B that would identify you as the individual who provided J services to a private individual or entity, regardless of when such services were provided. In response to your third, fourth, and sixth specific inquiries, you are advised as follows. Section 1103(g) of the Ethics Act would prohibit you from submitting or acting to further the submission of any information to Commonwealth Agency B that would identify you as the provider of J services to a private property owner, where such information would be submitted during a period of applicability of Section 1103(g). Such identifying information would include but would not be limited to your name and state C number. However, information identifying you as the provider of J services to a private property owner could be submitted to Commonwealth Agency B at such times as Section 1103(g) would not be applicable. You are advised that "acting to further the submission of information to Commonwealth Agency B that would identify you as the provider of services" would include, but would not be limited to, placing such identifying information on document(s) that you know or reasonably expect will be submitted to Commonwealth Agency B. Confidential Advice, 07 -595 November 21, 2007 Page 6 In response to your fifth specific inquiry, you are advised that during a period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) would prohibit you from identifying yourself on documents submitted to Commonwealth Agency B where such conduct would constitute prohibited "representation." The prohibition would encompass your name, state C number, and any other information identifying you as opposed to another individual. In response to your seventh and eighth specific inquiries, you are advised as follows. Section 1103(g) of the Ethics Act would prohibit you from submitting or acting to further the submission of any information to Commonwealth Agency B that would identify you as the provider of J services to a third-party Q hired by Commonwealth Agency B, where such information would be submitted during a period of applicability of Section 1103(g). This prohibition would encompass your name, state C number, and any other information identifying you as opposed to another individual. However, information identifying you as the provider of J services to a third -party Q could be submitted to Commonwealth Agency B during times that Section 1103(g) would not be applicable. As noted above, "acting to further the submission of information to Commonwealth Agency B that would identify you as the provider of services" would include, but would not be limited to, placing such identifying information on document(s) that you know or reasonably expect will be submitted to Commonwealth Agency B. 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 involve an interpretation of the Ethics Act. Specifically not addressed herein is the applicability of the R. 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, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). 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. For the first year following termination of service with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before 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 Js, J reviews, or expert witness services. However, 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. During any period of applicability of Section Confidential Advice, 07 -595 November 21, 2007 Page 7 1103(g) of the Ethics Act, you would be restricted from engaging in any activity that would constitute prohibited representation before Commonwealth Agency B. 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 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 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