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HomeMy WebLinkAbout09-501 MCALISTERAnnette M. McAlister 702 Genevieve Drive Mechanicsburg, PA 17055 Dear Ms. McAlister: ADVICE OF COUNSEL January 9, 2009 09 -501 This responds to your letter dated December 8, 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 impose any restrictions upon an annuitant who, following retirement from the Commonwealth of Pennsylvania ( "Commonwealth "), has provided services to the Pennsylvania Department of Education ( "Department of Education ") under the 95 -day annuitant program, most recently working in the position of Library Development Advisor (job code 25310), when: (1) the annuitant ceased providing such services to the Department of Education in June 2008; and (2) the Department of Education has offered the annuitant a contract employment position. 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. In June 2005, you retired from Commonwealth employment as the Chief of the Division of Library Improvement with the Office of Commonwealth Libraries, Bureau of Library Development. You subsequently returned to work with the Commonwealth for various periods as an annuitant under the 95 -day annuitant program (see, 71 Pa.C.S. § 5706(A. 1)). Your most recent period of service as an annuitant was from January 2008 to June 2008, when you worked with the Department of Education, Bureau of Library Development in the position of Library Development Advisor. You have submitted a copy of the official position description for said position, which document is incorporated herein by reference. A copy of the job classification specifications for the position (job code 25310) has been obtained and is also incorporated herein by reference. Per the position description and job classification specifications, your duties and authority as a Library Development Advisor with the Department of Education, Bureau of Library Development included, inter alia: (1) administering state subsidy and grant programs for library operations and services; (2) administering the federal Library McAlister, 09 -501 January 9, 2009 Page 2 Services and Technology Act (LSTA) library grant program; (3) assisting local public libraries in the development of plans for use of state financial aid; (4) administering "Hands on Books (One Book, One State)," a special grant- funded statewide roject; (5) facilitating implementation of the Public Library Return on Investment (ROI ), a major statewide library study; and (6) assisting with the selection and training of the new division chief, making recommendations to the bureau director, and orienting and training the new chief. You state that the Deputy Secretary for Libraries within the Department of Education has offered you a contract employment position as an assistant to the acting Director of the Bureau of Library Development. In such position, you would advise the acting Director in programmatic areas and provide support in the areas of management and supervision. You state that it is expected that the aforesaid assistant position will continue throughout the current Director's service in an acting capacity. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to accept a contract employment position as an assistant to the acting Director of the Department of Education's Bureau of Library Development. 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 clear that when an individual who has retired from Commonwealth employment returns to Commonwealth service as an annuitant to perform services falling within the Ethics Act's definition of "public employee" (see, 65 Pa.C.S. § 1102), the individual becomes a "public employee" subject to the Ethics Act. See, Graves, Opinion 00 -009; McGlathery, Opinion 00 -004. Based upon the duties and authority set forth in the position description and job classification specifications for the position of Library Development Advisor, the necessary conclusion is that when you commenced providing services to the Department of Education as an annuitant in said position in January 2008, you became 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; Graves, supra; McGlathery, supra. Consequently, when you ceased providing such annuitant services in June 2008, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. Section 1103(g) of the Ethics Act 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). McAlister, 09 -501 January 9, 2009 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 /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. Generally, a former "public official" or former "public employee" may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. See, Shaub, Order 1242; Confidential Opinion, 97 -008; Confidential Opinion, 93 -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. McAlister, 09 -501 January 9, 2009 Page 4 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. Under the facts that you have submitted, when you ceased providing services to the Department of Education under the 95 -day program for annuitants in June 2008, you became a "former public employee" subject to Section 1103(g) of the Ethics Act, and the one -year period of applicability of Section 1103(g) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is the Department of Education in its entirety, including but not limited to the Bureau of Library Development. Therefore, until the expiration of a full one -year period following your June 2008 termination of service as an annuitant with the Department of Education, or until you would resume providing services to the Department of Education under the 95 -day program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before the Department of Education as set forth above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised as follows. When Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from accepting a contract employment position with the Department of Education, including but not limited to a contract employment position as an assistant to the acting Director of the Bureau of Library Development. Cf., Shaub, supra; Confidential Opinion, 97 -008; Confidential Opinion, 93 -005. 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. McAlister, 09 -501 January 9, 2009 Page 5 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 January 2008, when you commenced providing services to the Pennsylvania Department of Education ( "Department of Education "), Bureau of Library Development as an annuitant under the 95 -day annuitant program, serving in the position of Library Development Advisor (job code 25310), you became a "public employee" subject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq. When you ceased providing such services in June 2008, became a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is the Department of Education in its entirety, including but not limited to the Bureau of Library Development. Until the expiration of a full one -year period following your June 2008 termination of service as an annuitant with the Department of Education, or until you would resume providing services to the Department of Education under the 95 -day program in a position falling within the Ethics Act's definition of "public employee," whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person" before the Department of Education as set forth above. When Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from accepting a contract employment position with the Department of Education, including but not limited to a contract employment position as an assistant to the acting Director of the Bureau of Library Development. 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 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