Loading...
HomeMy WebLinkAbout08-508 ConfidentialADVICE OF COUNSEL January 23, 2008 08 -508 This responds to your letter of December 12, 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 are currently employed by Commonwealth Agency B as an A at Unit u have submitted a copy of your official position description, which is incorporated herein by reference. A copy of the job classification specifications for your current position (job code [number) has been obtained and is also incorporated herein by reference. You state that you are of retirement age and are considering your retirement options. You express your view that you are qualified for a position as a D with Corporation E. You state that the position of D would involve providing [type of services] at Unit F or Unit G. You have submitted a copy of the job description for the D position with Corporation E, which document is incorporated herein by reference. Per said job description, the duties of a D include, in pertinent part: [list of job duties]. The job description for the D position with Corporation E further provides that one of the minimum qualifications for said position is to [quote]. Job Description, at 2. You state that your position with Commonwealth Agency B has never involved an dealings with Corporation E, any decisions on contractual services, or the provision of type of services]. You further state that Corporation E does not provide any services at Unit C and that you have not worked at either Unit F or Unit G. You state that in the proposed D position with Corporation E, you would not have any contractual interaction with Commonwealth Agency B, but rather, would be providing services. You express your understanding that you would not be permitted to engage in contract negotiations between Corporation E and the Commonwealth of Confidential Advice, 08 -508 January 23, 2008 Page 2 Pennsylvania or to act in any way on behalf of Corporation E in other matters between /involving Corporation E and the Commonwealth of Pennsylvania. You seek guidance as to whether the Ethics Act would permit you to accept the position of a D with Corporation E following your retirement from Commonwealth Agency B. 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 an A with 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; administering or monitoring grants or subsidies; planning or zoning; inspecting; licensing; regulating; auditing; or other activity(ies) where the economic impact is greater than de minimis on the interests of another person. Consequently, upon termination of public service, you would become 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. Confidential Advice, 08 -508 January 23, 2008 Page 3 "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 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. Confidential Advice, 08 -508 January 23, 2008 Page 4 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 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. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific inquiry shall be addressed. Under the submitted facts, it would appear to be impossible as a practical matter for you to perform the duties of a D employed by Corporation E during the first year following termination of employment with Commonwealth Agency B without running afoul of Section 1103(g) of the Ethics Act. For example, the submission of your name to a Commonwealth Agency B Employee H for approval for admission to a Commonwealth Agency B facility would necessarily involve prohibited representation of your new employer before your former governmental body. In addition, during the one - year period of applicability of Section 1103(g), you would clearly be prohibited from providing on -site [type of services] to [type of individuals] at a Commonwealth Agency B facility. See, Metz gar, Opinion 06 -002; Ziegler, Opinion 98 -001; [Advice name, number]. Likewise, Section 1103(g) would prohibit you from: (1) collaborating with Commonwealth Agency B employees, including but not limited to I Employees, in the planning, direction, and coordination of [type of activities]; (2) submitting reports, correspondence, or similar documents to Commonwealth Agency B that would contain your name or other identifying information; and (3) engaging in any other forms of contact with Commonwealth Agency B on behalf of Corporation E in the capacity of a D. As noted above, the restrictions of Section 1103(g) of the Ethics Act would apply to you for one year following termination of employment with 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 or give 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 J. Conclusion: As an A for Commonwealth Agency B, you would be considered a "public emplo ee" 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 service with Commonwea th Agency B, you would become 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, Unit C. During the first year following termination of employment with Commonwealth Agency B, the restrictions of Section 1103(g) of the Ethics Act as outlined above must be followed. Under the submitted facts, it would appear to be impossible as a practical matter for you to perform the duties of a D employed by Corporation E during the first year following Confidential Advice, 08 -508 January 23, 2008 Page 5 termination of employment with Commonwealth Agency B without running afoul of Section 1103(g) of the Ethics Act. The submission of your name to a Commonwealth Agency B Employee H for approval for admission to a Commonwealth Agency B facility would necessarily involve prohibited representation of your new employer before your former governmental body. During the one -year period of applicability of Section 1103(g), you would be prohibited from providing on -site [type of services] to [type of individuals] at a Commonwealth Agency B facility. Section 1103(g) of the Ethics Act would prohibit you from: (1) collaborating with Commonwealth Agency B employees, including but not limited to 1 Employees, in the planning, direction, and coordination of [type of activities]; (2) submitting reports, correspondence, or similar documents to Commonwealth Agency B that would contain your name or other identifying information; and (3) engaging in any other forms of contact with Commonwealth Agency B on behalf of Corporation E in the capacity of a D. Act. The propriety of the proposed conduct has only been addressed under the Ethics Further, should service be 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