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HomeMy WebLinkAbout08-570 ConfidentialADVICE OF COUNSEL August 18, 2008 08 -570 This responds to your letter of July 18, 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 impose any prohibitions or restrictions upon the former A with regard to serving on an advisory board within Commonwealth Department B. Facts: As C for Commonwealth Department B, you have been authorized by Individual D, the former A, and Individual E, the F, to request a confidential advisory from the Pennsylvania State Ethics Commission. You have submitted facts that may be fairly summarized as follows. Individual D resigned from her public position as the A effective [date]. You state that Individual D may be interested in serving as a public representative on various Commonwealth boards or advisory committees. Specifically, Individual D is presently considering an opportunity for appointment to the G Body. The G Body advises Commonwealth Department B with regard to the implementation of the provisions of the H Act ( "Act "), Act [number] of [year]. It is administratively noted that Section [number] of the Act establishes the G Body within Commonwealth Department B. It is further administratively noted that pursuant to Section [number] of the Act, Members of the G Body shall serve without compensation but may be reimbursed for necessary and reasonable travel and other expenses incurred during the performance of their duties. You state that the aforesaid prospective appointment to the G Body, if accepted by Individual D, would be within one year of Individual D's departure from Commonwealth service. You further state that there would be no promised or actual compensation associated with Individual D's position as a G Body Member. You additionally state that as a G Body Member, Individual D would not be personally representing another person before Commonwealth Department B. Based upon the above submitted facts, you ask whether the Ethics Act would permit Individual D to serve as a Member of the G Body. Confidential Advice, 08 -570 August 18, 2008 Page 2 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. In the former capacity as the A, Individual D 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. Consequently, upon termination of service as the A, Individual D became 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) of the Ethics Act 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). In that you have posed a narrow inquiry that does not pertain to Section 1103(i), that Section shall not be further addressed in this advisory. Section 1103(g) of the Ethics Act, which is relevant to your request, restricts a 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). Confidential Advice, 08 -570 August 18, 2008 Page 3 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 Confidential Advice, 08 -570 August 18, 2008 Page 4 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. The governmental bodies with which Individual D is deemed to have been associated upon termination of service as the A, hereinafter collectively referred to as her "former governmental body," would be: the I, Office J in its entirety, Commonwealth Department B in its entirety, and all commissions, committees, councils, and boards on which Individual D served. Therefore, for the first year following termination of Individual D's service as the A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Individual D's "former governmental body" as delineated above. Turning to your specific inquiry, you are advised as follows. Based upon the submitted facts that: (1) if Individual D would accept a position as a Member of the G Body, she would be returning to a position on an advisory board within Commonwealth Department B; (2) Individual D would receive no promised or actual compensation for serving as a Member of the G Body; and (3) as a G Body Member, Individual D would not be personally representing another person before Commonwealth Department B, Section 1103(g) of the Ethics Act would not prohibit Individual D from serving as a Member of the G Body. To the extent the G Body is a purely advisory board, Individual D would not resume status as a "public official" with Commonwealth Department B as a result of serving as a Member of the G Body (see, definition of "public official, 65 Pa.C.S. § 1102). The restrictions of Section 1103(g) of the Ethics Act would apply during the first year following termination of service as A. Goddard, Opinion 07 -019. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Specifically not addressed herein is the applicability of the K. Conclusion: In the former capacity as the A, Individual D would be considered a public official /public employee and an "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 service as the A, Individual D became 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. To the extent you have posed a narrow inquiry under Section 1103(g) only, you are advised as follows. The governmental bodies with which Individual D is deemed to have been associated upon termination of service as the A, hereinafter collectively referred to as her "former governmental body," would be: the I, Office J in its entirety, Commonwealth Department B in its entirety, and all commissions, committees, councils, and boards on which Individual D served. For the first year following Individual D's termination of service as the A, Section 1103(g) of the Ethics Act would apply and restrict "representation" of "persons" before Individual D's "former governmental body" as delineated above. Confidential Advice, 08 -570 August 18, 2008 Page 5 Based upon the submitted facts that: (1) if Individual D would accept a position as a Member of the G Body, she would be returning to a position on an advisory board within Commonwealth Department B; (2) Individual D would receive no promised or actual compensation for serving as a Member of the G Body; and (3) as a G Body Member, Individual D would not be personally representing another person before Commonwealth Department B, Section 1103(g) of the Ethics Act would not prohibit Individual D from serving as a Member of the G Body. To the extent the G Body is a purely advisory board, Individual D would not resume status as a "public official' with Commonwealth Department B as a result of serving as a Member of the G Body. The restrictions of Section 1103(g) of the Ethics Act would apply during the first year following termination of service as A. 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. 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