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HomeMy WebLinkAbout08-561 ConfidentialADVICE OF COUNSEL July 1, 2008 08 -561 This responds to your letter dated May 29, 2008, and your faxed transmission received June 2, 2008, by which you requested a confidential 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 prohibitions or restrictions upon the A for Commonwealth Office B with regard to: (1) engaging in conversations about future employment opportunities with C and D firms or the C department of a major corporation; or (2) performing the duties of her public position if such aforesaid conversations would take place. Facts: As the A for Commonwealth Office B, you request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You have served in your current position since [month, year]. You state that the position of A was created by the E to oversee the Commonwealth's C and D initiatives. In a telephone conversation with Commission staff, you confirmed that there is no official position description for your current position. Per your advisory request letter dated May 29, 2008, your duties and responsibilities as the A include or have included, inter alia, the following: [list of job duties and responsibilities]. You state that you will soon be seeking employment outside of Commonwealth Office B. You indicate that given your C experience, it is likely that your next employment opportunity will be with a C and D firm or the C department of a major corporation. Based upon the above submitted facts, you ask whether the Ethics Act would impose any restrictions upon you with regard to having conversations with prospective employers. You additionally ask whether you would be required to recuse yourself from certain discussions or decisions in your current position while any such conversations regarding your future employment opportunities would be taking place. 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 Confidential Advice, 08 -561 July 1, 2008 Page 2 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. As the A for Commonwealth Office B, you would be considered a "public official /public employee" and an "executive -level state 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. Section 1103(a) of the Ethics Act provides: § 1103. Restricted activities (a) Conflict of interest. - -No public official or public employee shall engage in conduct that constitutes a conflict of interest. 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest are defined in the Ethics Act as follows: 65 Pa.C.S. § 1102. § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. Confidential Advice, 08 -561 July 1, 2008 Page 3 Section 1103(a) of the Ethics Act prohibits a public official /public employee from using the authority of public office /employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official /public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. Sections 1103(b) and 1103(c) of the Ethics Act, pertaining to improper influence, provide as follows: § 1103. Restricted activities (b) Seeking improper influence. —No person shall offer or give to a public official, public employee or nominee or candidate for public office or a member of his immediate family or a business with which he is associated, anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment based on the offeror's or donor's understanding that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. (c) Accepting improper influence. —No public official, public employee or nominee or candidate for public office shall solicit or accept anything of monetary value, including a gift, loan, political contribution, reward or promise of future employment, based on any understanding of that public official, public employee or nominee that the vote, official action or judgment of the public official or public employee or nominee or candidate for public office would be influenced thereby. 65 Pa. C. S. §§ 1103(b), (c). Sections 1103(b) and 1103(c) of the Ethics Act provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgment of the public official /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. In response to your specific inquiries, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed by being in your public position, in furtherance of an employment opportunity for yourself. Section 1103(a) of the Ethics Act would not restrict you in your private capacity from having conversations or otherwise pursuing employment with a prospective employer with which you have not had, and reasonably do not expect to have, any officiaf involvement in your Commonwealth position. Confidential Advice, 08 -561 July 1, 2008 Page 4 As for firms with which you have already had official involvement, an advisory cannot provide a ruling as to past conduct. However, you are generally advised that the question of whether a violation of Section 1103(a) could result from accepting an employment position with such a firm would depend upon the factual circumstances, such as, for example: how long ago you had official involvement as to such firm; the nature and extent of such involvement; whether at the time of your official involvement, your future employment with such firm could have been reasonably anticipated; and whether any actions that you took during your employment with the Commonwealth furthered the prospects for your future employment with such firm. With regard to prospective matters coming before you as a public employee, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to a prospective employer with which you would be pursuing, or would reasonably anticipate pursuing, employment. In each instance of a conflict of interest, you would be required to abstain fully from participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the F Code. Conclusion: As the A for Commonwealth Office B, you would be considered a "public official /public employee" and an "executive -level state employee" subject to the Public Official and Employee Ethics Act, 65 Pa.C.S. § 1101 et seq. ( "Ethics Act "). Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed by being in your public position, in furtherance of an employment opportunity for yourself. Section 1103(a) of the Ethics Act would not restrict you in your private capacity from having conversations or otherwise pursuing employment with a prospective employer with which you have not had, and reasonably do not expect to have, any official involvement in your Commonwealth position. As for firms with which you have already had official involvement, an advisory cannot provide a ruling as to past conduct. However, you are generally advised that the question of whether a violation of Section 1103(a) could result from accepting an employment position with such a firm would depend upon the factual circumstances, such as, for example: how long ago you had official involvement as to such firm; the nature and extent of such involvement; whether at the time of your official involvement, your future employment with such firm could have been reasonably anticipated; and whether any actions that you took during your employment with the Commonwealth furthered the prospects for your future employment with such firm. With regard to prospective matters coming before you as a public employee, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to a prospective employer with which you would be pursuing, or would reasonably anticipate pursuing, employment. In each instance of a conflict of interest, you would be required to abstain fully from participation. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. 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. Confidential Advice, 08 -561 July 1, 2008 Page 5 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