HomeMy WebLinkAbout10-501 Gutshall
ADVICE OF COUNSEL
January 5, 2010
Lauren Gutshall
APSCUF
319 N. Front Street
P.O. Box 11995
Harrisburg, PA 17108
10-501
Dear Ms. Gutshall:
This responds to your letter dated November 12, 2009, by which you requested
an advisory from the Pennsylvania State Ethics Commission.
Issue:
Whether, in your former capacity as a Regional Media Relations
Officer/Regional Coordinator of Policy Planning and Development with the Pennsylvania
House of Representatives (“House”), 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, such that the restrictions
of Section 1103(g) of the Ethics Act would now be applicable to you.
Facts:
You have requested an advisory from the Pennsylvania State Ethics
Commission based upon submitted facts that may be fairly summarized as follows.
You were formerly employed as a Regional Media Relations Officer with the
House Republican Communications Department. The submitted facts do not disclose
the date that your employment in your former position with the House was terminated.
You have submitted a copy of the Job Specifications for the position of Regional
Media Relations Officer, which document is incorporated herein by reference. You state
that in early 2009, when the Regional Media department moved under the House
Republican Policy Committee, the job title for your position changed to “Regional
Coordinator of Policy Planning and Development” but your job duties and the official
description of the position did not change.
Per the Job Specifications, an individual in the position of Regional Media
Relations Officer “[d]evelops, coordinates and delivers public information and policy for
constituents and media in a delegated geographic region for the House Republican
Caucus.” Job Specifications, paragraph 1. The Examples of Duties set forth in the Job
Specifications include the following:
?
Attending committee hearings and meetings which address his/her issues of
focus.
?
Planning and coordinating media events for Members.
Gutshall, 10-501
January 5, 2010
Page 2
?
Creating press plans.
?
Writing press releases, talking points, media advisories, and op-eds.
?
Pitching feeds and stories to media outlets.
?
Helping to coordinate video and radio feeds.
?
Preparing legislators for media interviews.
?
Researching issues of importance to his/her respective media market.
?
Searching news clips and blogs.
?
Researching legislation and data.
Job Specifications, at 1.
You state that you recently took a Government Relations position with the
Association of Pennsylvania State College & University Faculties (“APSCUF”).
You seek guidance as to whether the Ethics Act would impose any restrictions
upon you with respect to lobbying the House during the first year following termination
of 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.
In responding to your inquiry, the threshold question to be addressed is whether
in your former capacity as a Regional Media Relations Officer/Regional Coordinator of
Policy Planning and Development with the House, you would be considered a "public
employee" subject to the Ethics Act.
The Ethics Act defines the term "public employee" as follows:
§ 1102. Definitions
"Public employee."
Any individual employed by the
Commonwealth or a political subdivision who is responsible
for taking or recommending official action of a nonministerial
nature with regard to:
(1) contracting or procurement;
(2) administering or monitoring grants or subsidies;
(3) planning or zoning;
(4) inspecting, licensing, regulating or auditing any
person; or
(5) any other activity where the official action has an
economic impact of greater than a de minimis
nature on the interests of any person.
The term shall not include individuals who are employed by
this Commonwealth or any political subdivision thereof in
teaching as distinguished from administrative duties.
65 Pa.C.S. § 1102.
Gutshall, 10-501
January 5, 2010
Page 3
The Regulations of the State Ethics Commission similarly define the term "public
employee" and set forth the following additional criteria:
(ii) The following criteria will be used, in part, to
determine whether an individual is within the definition of
"public employe":
(A) The individual normally performs his responsibility
in the field without onsite supervision.
(B) The individual is the immediate supervisor of a
person who normally performs his responsibility in the field
without onsite supervision.
(C) The individual is the supervisor of a highest level
field office.
(D) The individual has the authority to make final
decisions.
(E) The individual has the authority to forward or
stop recommendations from being sent to the person or
body with the authority to make final decisions.
(F) The individual prepares or supervises the
preparation of final recommendations.
(G) The individual makes final technical recommen-
dations.
(H) The individual's recommendations or actions are
an inherent and recurring part of his position.
(I) The individual's recommendations or actions
affect organizations other than his own organization.
(iii) The term does not include individuals who are
employed by the Commonwealth or a political subdivision of the
Commonwealth in teaching as distinguished from administrative
duties.
(iv) Persons in the following positions are generally
considered public employes:
(A) Executive and special directors or assistants
reporting directly to the agency head or governing body.
(B) Commonwealth bureau directors, division chiefs
or heads of equivalent organization elements and other
governmental body department heads.
(C) Staff attorneys engaged in representing the
department, agency or other governmental bodies.
(D) Engineers, managers and secretary-treasurers
acting as managers, police chiefs, chief clerks, chief
purchasing agents, grant and contract managers,
administrative officers, housing and building inspectors,
Gutshall, 10-501
January 5, 2010
Page 4
investigators, auditors, sewer enforcement officers and
zoning officers in all governmental bodies.
(E) Court administrators, assistants for fiscal affairs
and deputies for the minor judiciary.
(F) School superintendents, assistant superintendents,
school business managers and principals .
(G) Persons who report directly to heads of
executive, legislative and independent agencies, boards and
commissions except clerical personnel.
(v) Persons in the following positions are generally
not considered public employes:
(A) City clerks, other clerical staff, road masters,
secretaries, police officers, maintenance workers,
construction workers, equipment operators and recreation
directors.
(B) Law clerks, court criers, court reporters,
probation officers, security guards and writ servers.
(C) School teachers and clerks of the schools.
51 Pa. Code § 11.1.
In applying the definition of "public employee" and the related regulatory criteria
to the submitted facts as to the duties of your former position, you are advised that most
of the duties set forth in your Job Specifications would not bring you within the definition
of the term “public employee” as set forth in the Ethics Act. However, the authority to
develop policy for constituents and media could establish status as a public employee
subject to the Ethics Act depending upon the nature and extent of such authority. The
submitted facts are insufficient to enable a conclusive determination in that regard.
Therefore, you are advised that in your former capacity as a Regional Media Relations
Officer/Regional Coordinator of Policy Planning and Development with the House, you
would be considered a "public employee" subject to the Ethics Act if the position’s
authority to develop policy for constituents and media included responsibility for taking
or recommending official action of a non-ministerial nature with regard to one or more of
the five categories set forth in the Ethics Act’s definition of the term “public employee.”
The post-employment restrictions of Section 1103(g) of the Ethics Act only apply
to former public officials/public employees:
§ 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). Because the submitted facts are insufficient to enable a
conclusive determination of your status, this Advice shall address both possibilities.
If the duties and responsibilities of your former position would not bring you within
the definition of the term “public employee” as set forth in the Ethics Act, Section
Gutshall, 10-501
January 5, 2010
Page 5
1103(g) of the Ethics Act would not apply to restrict you now, and Section 1103(g) of the
Ethics Act would not apply to prohibit you from lobbying the House.
On the other hand, if the duties and responsibilities of your former position would
bring you within the definition of the term “public employee” as set forth in the Ethics
Act, you would now be considered a “former public employee” subject to the restrictions
of 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.” 65 Pa.C.S. § 1103(g).
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
Gutshall, 10-501
January 5, 2010
Page 6
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.
To the extent you are a former public employee subject to Section 1103(g) of the
Ethics Act, the governmental body with which you have been associated upon
termination of public service is the House in its entirety, and for the first year following
termination of service with the House, Section 1103(g) of the Ethics Act will apply and
restrict lobbying and/or any other form of “representation” of “persons” before the
House.
Lastly, your inquiry has only been addressed under the Ethics Act; the
applicability of any other statute, code, ordinance, regulation, or other code of conduct
other than the Ethics Act has not been considered in that they do not involve an
interpretation of the Ethics Act.
Conclusion:
Given the insufficiency of the submitted facts, you are advised that
in your former capacity as a Regional Media Relations Officer/Regional Coordinator of
Policy Planning and Development with the Pennsylvania House of Representatives
(“House”), 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., if the position’s
authority to develop policy for constituents and media included responsibility for taking
or recommending official action of a non-ministerial nature with regard to one or more of
the five categories set forth in the Ethics Act’s definition of the term “public employee.”
If the duties and responsibilities of your former position would not bring you within the
definition of the term “public employee” as set forth in the Ethics Act, Section 1103(g) of
the Ethics Act would not apply to restrict you now, and Section 1103(g) of the Ethics Act
would not apply to prohibit you from lobbying the House. If the duties and
responsibilities of your former position would bring you within the definition of the term
“public employee” as set forth in the Ethics Act, you would now be considered a “former
public employee” subject to the restrictions of Section 1103(g) of the Ethics Act. To the
extent you are a former public employee subject to Section 1103(g) of the Ethics Act,
the governmental body with which you have been associated upon termination of public
service is the House in its entirety, and for the first year following termination of service
with the House, Section 1103(g) of the Ethics Act will apply and restrict lobbying and/or
Gutshall, 10-501
January 5, 2010
Page 7
any other form of “representation” of “persons” before the House. 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