Loading...
HomeMy WebLinkAbout09-583 Pressmann ADVICE OF COUNSEL December 23, 2009 Sean D. Pressmann PPL Customer Programs Specialist Two North Ninth Street Allentown, PA 18101-1179 09-583 Dear Mr. Pressmann: This responds to your letters dated October 12, 2009, and October 26, 2009, and your faxed transmission received November 5, 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.C.S. § 1101 et seq., would impose any restrictions upon employment of a former Chief of Staff with the Pennsylvania Department of General Services (“DGS”) and Legislative Liaison 3 with DGS and the Governor’s Office of Administration (“OA”) 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. From February 1, 2006, to June 19, 2009, you were employed as Chief of Staff with DGS. You have submitted a copy of your official position description for your former position as Chief of Staff, which document is incorporated herein by reference. It is noted that the job title of your former position was Administrative Officer 5. A copy of the job classification specifications for the position of Administrative Officer 5 (job code 08670) has been obtained and is also incorporated herein by reference. From June 20, 2009, to July 31, 2009, you served as a Legislative Liaison 3 with DGS and OA. You have submitted a copy of your official position description for your former position as a Legislative Liaison 3, which document is incorporated herein by reference. A copy of the job classification specifications for the aforesaid position (job code 07243) has been obtained and is also incorporated herein by reference. On July 31, 2009, you resigned from Commonwealth employment to take a position as a Customer Programs Specialist with PPL Electric Utilities Corporation (“PPL”) beginning August 10, 2009. You state that in your role with PPL, you work in the area of project management and communications for Act 129 of 2008 (“Act 129”). It is administratively noted that on October 15, 2008, Governor Edward G. Rendell signed House Bill 2200 into law as Act 129 of 2008, with an effective date of November 14, 2008. Pressmann, 09-583 December 23, 2009 Page 2 You describe Act 129 as follows: House Bill 2200 – Act 129 of 2008 Bill -The Act adds several new sections to, and amends several existing sections of the Public Utility Code. The Commission will implement the Act in phases. The first phase will deal with the Commission’s obligation to adopt an energy efficiency and conservation (EE&C) program by Jan. 15, 2009. Subsequent phases of the Commission’s Act 129 implementation process will address EDC and default service provider responsibilities; conservation service providers; smart meter technology; time-of-use rates; real-time pricing plans; default service procurement; market misconduct; alternative energy sources; and cost recovery. October 26, 2009, Advisory Request Letter of Pressmann, at paragraph 2. You state that you were not involved in the crafting of House Bill 2200 while you were employed with DGS. You state that it is your role as a Customer Programs Specialist with PPL to make PPL’s customers aware of the incentives offered under Act 129, help such customers manage their individual projects, and work within the parameters of the existing law. You state that your role will not be in any way to alter interpretation of the law, lobby for changes in the law, or seek any Commonwealth contract or procurement. You state that you are not authorized by PPL to represent any PPL company before any Commonwealth agency or the Pennsylvania legislature, and therefore you will not be registering as a lobbyist for PPL. Based upon the above submitted facts, you ask whether the Ethics Act would permit you to interact with DGS/OA on a project management basis before one year has passed since you terminated your Commonwealth employment. 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. To the extent that your inquiry relates to conduct that has already occurred, such past conduct may not be addressed in the context of an advisory opinion. However, to the extent your inquiry relates to future conduct, your inquiry may and shall be addressed. In the former capacities as Chief of Staff with DGS and a Legislative Liaison 3 with DGS and OA, 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; Smetak, Advice 07-585; Boston, Advice 06-576. This conclusion is based upon the position descriptions and 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; Pressmann, 09-583 December 23, 2009 Page 3 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 Commonwealth employment, 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: § 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. Pressmann, 09-583 December 23, 2009 Page 4 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 public 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. The governmental body with which you are deemed to have been associated upon termination of Commonwealth employment, hereinafter referred to as your “former governmental body,” is DGS in its entirety and OA in its entirety. Therefore, for the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before your former governmental body as identified above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised as follows. During the one-year period of applicability of Section 1103(g) of the Ethics Act, you may not engage in any activity(ies) that would constitute prohibited representation before your “former governmental body” as set forth above. During the one-year period of applicability of Section 1103(g) of the Ethics Act, it would be impossible as a practical matter for you, as a Customer Programs Specialist with PPL, to interact with DGS or OA on a project management basis without engaging in prohibited representation before your former governmental body. 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 Pressmann, 09-583 December 23, 2009 Page 5 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: In your former capacities as Chief of Staff with the Pennsylvania Department of General Services (“DGS”) and a Legislative Liaison 3 with DGS and the Governor’s Office of Administration (“OA”), you would be considered a "public employee" subject 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 Commonwealth employment, you became a "former public employee" subject to the restrictions of Section 1103(g) of the Ethics Act. The governmental body with which you are deemed to have been associated upon termination of Commonwealth employment, hereinafter referred to as your “former governmental body,” is DGS in its entirety and OA in its entirety. For the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before your former governmental body as identified above. T he restrictions as to representation outlined above must be followed. During the one-year period of applicability of Section 1103(g) of the Ethics Act, it would be impossible as a practical matter for you, as a Customer Programs Specialist with PPL Electric Utilities Corporation, to interact with DGS or OA on a project management basis without engaging in prohibited representation before your former governmental body. 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