Loading...
HomeMy WebLinkAbout09-536 FisherEvalyn L. Fisher 403 Boas Street Harrisburg, PA 17102 Dear Ms. Fisher: ADVICE OF COUNSEL April 3, 2009 09 -536 This responds to your correspondence dated February 20, 2009, 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 employment of the Director of the Bureau of Plans within the Pennsylvania Emergency Management Agency ( "PEMA ") following termination of Commonwealth employment. 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. You are currently employed as the Director of the Bureau of Plans ( "Bureau ") within PEMA. You have submitted copies of your official job description and an organization chart for PEMA, both of which documents are incorporated herein by reference. It is noted that the class title of your position is Emergency Management Director of Plans. A copy of the job classification specifications for your current position (job code 76165) has been obtained and is also incorporated herein by reference. It is noted that per your official PEMA job description, you represent the Director of PEMA on the Farm Safety and Occupational Health Advisory Board, the Attorney General's Arson Task Force, and selected interagency task forces and committees. Job Description, at 1, 3. You state that the Director of the Bureau is responsible for the coordination of all hazards planning and maintains the State Emergency Operations Plan and the State Homeland Security Strategy. You state that the Director of the Bureau also has programmatic lead on application(s) for annual federal homeland security funds for nine regional task forces ( "the Task Forces "), two Urban Areas Security Initiatives ( "the UASIs "), and a score of state agencies. Fisher, 09 -536 April 3, 2009 Page 2 You have been offered employment as the first executive director of the Southeast Pennsylvania Regional Task Force, which is one of the Task Forces and UASIs referenced above. You state that in your new role, you would need to be in regular contact with PEMA to stay abreast of grants management requirements, programmatic developments and planning initiatives that involve the Task Forces and the UASIs, and that you would need to be able to ask questions of PEMA to gain clarification on issues. You state that you would like to be of some assistance to PEMA and the other Task Forces - -with the permission of your executive board - -when it comes to task force development, regional plans, and best practices. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to your proposed employment as the first executive director of the Southeast Pennsylvania Regional Task Force. 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 the Director of the Bureau, 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. This conclusion is based upon the job 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 your employment with PEMA, you would become 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: Fisher, 09 -536 April 3, 2009 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 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 available to the general public, but this must not be done in an effort to indirectly Fisher, 09 -536 April 3, 2009 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 would be deemed to have been associated upon termination of Commonwealth employment, hereinafter collectively referred to as your "former governmental body," would be PEMA in its entirety, and all boards, task forces, committees and the like on which you served in your official capacity, including but not limited to the Farm Safety and Occupational Health Advisory Board and the Attorney General's Arson Task Force. Therefore, for the first year following termination of your employment with PEMA, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person," with promised or actual compensation, before your "former governmental body" as delineated above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised as follows. The Ethics Act would not prohibit you from accepting employment as the first executive director of the Southeast Pennsylvania Regional Task Force. However, during the first year following termination of your employment with PEMA, Section 1103(g) of the Ethics Act would prohibit you from performing any activities that would involve prohibited representation before your "former governmental body" as set forth above. You are advised that it would appear to be impossible, as a practical matter, for you to perform some of the duties of the proposed executive director position without running afoul of 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. 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 the Director of the Bureau of Plans within the Pennsylvania Emergency anagement Agency ("PEMA"), you would be considered a "public employee'�subjject to the Public Official and Employee Ethics Act ( "Ethics Act'), 65 Pa.C.S. § 1101 et seq., and the Regulations of the State Ethics Commission. Upon termination of your employment with PEMA, you would become a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon Fisher, 09 -536 April 3, 2009 Page 5 termination of such employment, hereinafter collectively referred to as your "former governmental body," would be PEMA in its entirety, and all boards, task forces, committees and the like on which you served in your official capacity, including but not limited to the Farm Safety and Occupational Health Advisory Board and the Attorney General's Arson Task Force. Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a "person," with promised or actual compensation, before your "former governmental body" as delineated above. The restrictions as to representation outlined above must be followed. 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