HomeMy WebLinkAbout08-557 GrassDeborah J. Grass
1506 Greenmount Avenue
Pittsburgh, PA 15216
Dear Ms. Grass:
ADVICE OF COUNSEL
May 23, 2008
08 -557
This responds to your letters dated March 17, 2008, and April 10, 2008, by
which you requested an advisory 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 a Local
Government Policy Specialist following termination of service with the Commonwealth
of Pennsylvania Department of Community and Economic Development, Governor's
Center for Local Government Services.
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.
From June 3, 2005, through February 29, 2008, you were employed as a Local
Government Policy Specialist with the Commonwealth of Pennsylvania Department of
Community and Economic Development ( "DCED "), Governor's Center for Local
Government Services. You state that the aforesaid position was an exempt, non -civil
service position.
You have submitted a copy of your official DCED position description and the job
classification specifications (job code 16860) for your former position, both of which
documents are incorporated herein by reference.
You state that you left Commonwealth employment to take a position in the
private sector as a Community Development and Municipal Services Associate with
Delta Development Group, Inc. ( "Delta "). Your aforesaid employment with Delta
commenced March 3, 2008. In your position with Delta, your responsibilities include
projects and contracts with local governments, counties, and public entities throughout
the Commonwealth of Pennsylvania, some of which projects and contracts could
include funding from DCED.
Grass, 08 -557
May 23, 2008
Page 2
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you in your position with Delta as to your involvement with projects and contracts
with local governments, counties, and public entities throughout the Commonwealth,
where such projects and contracts could include funding from DCED.
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 opinion /advice may be given only as to prospective (future) conduct. If
the activity in question has already occurred, the Commission may not issue an
opinion /advice but any person may then submit a signed and sworn complaint, which
will be investigated by the Commission if there are allegations of Ethics Act violations by
a person who is subject to the Ethics Act. To the extent you have inquired as to
conduct that has already occurred, such past conduct may not be addressed in the
context of an advisory opinion. However, to the extent you have inquired as to future
conduct, your inquiry may, and shall, be addressed.
In the former capacity as a Local Government Policy Specialist for DCED, 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;
Johnson, Advice 06 -579; Kinsey, Advice 06 -550. 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 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:
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May 23, 2008
Page 3
§ 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 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
Grass, 08 -557
May 23, 2008
Page 4
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 are deemed to have been associated
upon termination of public service is DCED in its entirety, including but not limited to the
Governor's Center for Local Government Services. Therefore, for the first year after
termination of employment with DCED, Section 1103(g) of the Ethics Act would apply
and restrict "representation" of "persons" before DCED.
Turning to your specific inquiry, you are advised that during the first year
following termination of your Commonwealth employment, Section 1103(g) of the Ethics
Act would prohibit you from performing any job duties as a Delta employee that would
involve prohibited representation before DCED as set forth above. To the extent that
your job duties with respect to projects and contracts receiving funding from DCED
would include prohibited representation before DCED as outlined above, your
performance of such activities would be contrary to 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.
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: In the former capacity as a Local Government Policy Specialist with
the Commonwealth of Pennsylvania Department of Community and Economic
Development ( "DCED "), Governor's Center for Local Government Services, you would
be considered a "public employee" as that term is defined in the Public Official and
Employee Ethics Act ( "Ethics Act "), 65 Pa.C.S. § 1101 et seq. Upon termination of
employment with DCED, you became a "former public employee" subject to Section
1103(g) of the Ethics Act. The former governmental body would be DCED in its
entirety, including but not limited to the Governor's Center for Local Government
Services. The restrictions as to representation outlined above must be followed. The
propriety of the proposed conduct has only been addressed under the Ethics Act.
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
Grass, 08 -557
May 23, 2008
Page 5
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