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HomeMy WebLinkAbout08-543 STEPHENSArthur C. Stephens 701 Spring Garden Street Elizabethtown, PA 17022 ADVICE OF COUNSEL April 24, 2008 08 -543 Dear Mr. Stephens: This responds to your letters of March 17, 2008, and March 24, 2008, by which you requested advice from the Pennsylvania 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 the Deputy Chief of Staff in the Governor's Office following termination of service with the Commonwealth of Pennsylvania. Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post- employment restrictions of the Ethics Act. You have submitted facts that may be fairly summarized as follows. Since June, 1, 2005, you have served as Deputy Chief of Staff in the Governor's Office, with the exception of the period from June 16, 2007, through September 3, 2007, when you were on an unpaid leave of absence. You previously served as the Deputy Secretary for Information Technology for the Office of Administration ( "OA ") from March 2003 to June 2005. As Deputy Chief of Staff, you report to the Governor's Chief of Staff. You note that there is neither an official position description nor official job classification specifications for your current position. You state when you began serving as Deputy Chief of Staff in June 2005, you served as the Governor's primary liaison to public safety agencies under the Governor's jurisdiction, including: the Pennsylvania Emergency Management Agency ( "PEMA "); the Pennsylvania Office of Homeland Security; the Pennsylvania State Police; the Pennsylvania Commission on Crime and Delinquency; the Pennsylvania Department of Corrections; the Pennsylvania Board of Probation and Parole; and the Pennsylvania Department of Military and Veterans' Affairs. You state that while the agencies for which you acted as a liaison reported to the Governor and did not report directly to you, such agencies conveyed information through you to the Governor and his senior staff. You state that you also interacted with: the Pennsylvania Department of Environmental Protection ( "DEP ") on radiological emergency matters and flooding; the Commonwealth of Pennsylvania Department of Transportation ( "PennDOT'') on emergency and critical infrastructure matters; the Pennsylvania Department of Health and the Pennsylvania Department of Agriculture on pandemic planning efforts; and OA Stephens, 08 -543 April 24, 2008 Page 2 on Continuity of Government matters. You did not oversee any budget and had no authority over personnel or procurement. You state that you continued in this capacity until June 16, 2007, when you began an unpaid leave of absence that continued through September 3, 2007. In September 2007, the Deputy Secretary for the Office of Information Technology ("OIT ") resigned. You state that upon returning from your leave of absence, the Governor's Chief of Staff asked you to serve in an interim assignment to assist the Secretary of Administration ( "the Secretary ") in supporting OIT. In your interim assignment, you spent approximately seventy percent of your time advising the Secretary and working with Deputy Chief Information Officers within OIT. You also led the search for a full -time Deputy Secretary for OIT, which position was filled in January 2008. You state that from September 2007 to January 2008, you did not have budgetary, procurement, or human resource responsibilities for OIT but served in an advisory capacity to OIT on those matters. You state that since you returned to your position as Deputy Chief of Staff on September 4, 2007, you have not continued in your public safety liaison capacity. You currently do not serve as the primary liaison to any Commonwealth entity. However, since your return, you have served as an advisor to PEMA and the Pennsylvania Department of Health in emergency management, pandemic, and homeland security matters. In addition, you continue to assist OA with Continuity of Government planning. You state that in the aforesaid roles, you do not have budgetary, procurement, or human resource responsibilities. You note that since February 2008, you have also been acting as an advisor to PennDOT on technology, administrative, and continuity of government issues. You state that you have not made any decisions regarding your potential career options. One option is to return to the private sector, which could include providing consulting services to governmental entities. Based upon the above submitted facts, you pose the following specific questions as to restrictions on your activities following termination of Commonwealth service: 1. In general, whether the Ethics Act would present any restrictions upon your employment following your termination of service as Deputy Chief of Staff; 2. Whether you would be permitted to have contact with state agencies, and specifically what restrictions would apply to you under the Ethics Act; and 3. Whether the Ethics Act would permit you to advise businesses on the functions of government and other strategies as long as you would not have direct contact with a "restricted agency or employee." 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 Deputy Chief of Staff in the Governor's Office, you would be considered a "public official /public employee" and an "executive -level State employee" subject to the Stephens, 08 -543 April 24, 2008 Page 3 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 Commonwealth service, you would become a former public official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. Section 1103(i) restricts former executive -level State employees as follows: § 1103. Restricted activities (i) Former executive -level employee. - -No former executive -level State employee may for a period of two years from the time that he terminates employment with this Commonwealth be employed by, receive compensation from, assist or act in a representative capacity for a business or corporation that he actively participated in recruiting to this Commonwealth or that he actively participated in inducing to open a new plant, facility or branch in this Commonwealth or that he actively participated in inducing to expand an existent plant or facility within this Commonwealth, provided that the above prohibition shall be invoked only when the recruitment or inducement is accomplished by a grant or loan of money or a promise of a grant or loan of money from the Commonwealth to the business or corporation recruited or induced to expand. 65 Pa.C.S. § 1103(i). Section 1103(i) restricts the ability of a former executive -level State employee to accept employment or otherwise engage in business relationships following termination of State service, under certain narrow conditions. The restrictions of Section 1103(i) apply even where the business relationship is indirect, such as where the business in question is a client of a new employer, rather than the new employer itself. See, Confidential Opinion, 94 -011. However, Section 1103(i) would not restrict you from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation subject to the conditions that you did not actively participate in recruiting such business or corporation to Pennsylvania, and that you did not actively participate in inducing such business or corporation to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. Unlike Section 1103(i), Section 1103(g) does not prohibit a former public official /public employee from accepting a position of employment. However, 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). Stephens, 08 -543 April 24, 2008 Page 4 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. 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 Stephens, 08 -543 April 24, 2008 Page 5 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 Commonwealth service, hereinafter referred to as your "former governmental body," would be the Governor's Office in its entirety, including but not limited to the Executive Offices and OA, as well as any boards, commissions, or other governmental bodies that you serve as an employee, appointee /member, or designee. See, Confidential Opinion, 01 -006. Therefore, for the first year following termination of your Commonwealth service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your former governmental body as identified above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, it is noted that your first and second questions have already been addressed above. In response to your third question, you are advised as follows. Following termination of your Commonwealth service, Section 1103(i) of the Ethics Act would not prohibit you from advising a given business on the functions of government and other strategies conditioned upon the assumptions that you did not actively participate in recruiting such business to Pennsylvania, and that you did not actively participate in inducing such business to open or expand a plant, facility, or branch in Pennsylvania, through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania to such business. Section 1103(g) of the Ethics Act would not prohibit you from advising businesses on the functions of government and other strategies as long as in so doing, you would not engage in prohibited representation before your former governmental body during the first year following termination of Commonwealth service. Based upon the facts that have been submitted, this Advice has addressed the applicability of Sections 1103(g) and 1103(i) 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. Specifically not addressed herein is the applicability of the Governor's Code of Conduct. Conclusion: As Deputy Chief of Staff in the Governor's Office, you would be considered a "public official /public employee" and "executive -level State employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of Commonwealth service, you would become a former public Stephens, 08 -543 April 24, 2008 Page 6 official /public employee and a former executive -level State employee subject to the restrictions of Section 1103(g) and Section 1103(i) of the Ethics Act. The prohibitions of Section 1103(i) of the Ethics Act set forth above would have to be followed. Under Section 1103(1) of the Ethics Act, you would not be prohibited from being employed by, receiving compensation from, assisting, or acting in a representative capacity for a business or corporation subject to the conditions that you did not actively participate in recruiting such business or corporation to Pennsylvania, and that you did not actively participate in inducing such business or corporation to open or expand a plant, facility, or branch in Pennsylvania through a grant or loan of money or a promise of a grant or loan of money from the Commonwealth of Pennsylvania. The restrictions of Section 1103(g) of the Ethics Act as outlined above must be followed. The governmental body with which you would be deemed to have been associated upon termination of Commonwealth service, hereinafter referred to as your "former governmental body," would be the Governor's Office in its entirety, including but not limited to the Executive Offices and Office of Administration, as well as any boards, commissions, or other governmental bodies that you serve as an employee, appointee /member, or designee. For the first year following termination of your Commonwealth service, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before your former governmental body as identified above. The propriety of the proposed conduct has only been addressed under the Ethics Act. 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) of the Ethics Act, 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