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HomeMy WebLinkAbout10-580 Confidential ADVICE OF COUNSEL May 18, 2010 10-580 This responds to your letters dated April 7, 2010, and April 10, 2010, and your email of April 19, 2010, 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.C.S. § 1101 et seq., would impose any restrictions upon employment of an A following termination of service with Commonwealth Agency B. Facts: You request a confidential 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 an A with the C Division in Bureau D within the E Office of Commonwealth Agency B. You have submitted copies of the position description for your current position with Commonwealth Agency B, the job classification specifications for the position of A (job code [number]), and organization charts for Commonwealth Agency B and Bureau D, which documents are incorporated herein by reference. You state that your current position is physically located at Component F of Commonwealth Agency B since your primary duty is to review Component F’s Gs. You primarily perform [certain activities]. Your additional duties include [certain duties]. You state that you do not participate in any Component F Hs, I, or J activities. You state that you have participated in one C Division H to select a K to [perform a certain function]. You state that you are considering retiring from your employment with Commonwealth Agency B in [month, year] to join a [type of firm] (“the Firm”). You state that your main duties with the Firm would be to review Gs and work on L contracts throughout the Commonwealth. You state that in working on such a contract, you would be preparing Gs as a K to an M that won a Commonwealth Agency B contract through the N process. You further state that in performing such work, you would not be directly involved with any Commonwealth Agency B staff via meetings, telephone, documentation, or email and that no invoices containing your name would be submitted to Commonwealth Agency B. You seek guidance as to what impact the Ethics Act would have upon your proposed employment with the Firm. In particular, you pose the following specific questions: 1. Whether, for purposes of applying the State Ethics Commission’s holding in Abrams/Webster, Opinion 95-011 (pertaining to invoices), the “unit” Confidential Advice, 10-580 May 18, 2010 Page 2 where you work would be the C Division, Bureau D, the E Office’s O, or the E Office in its entirety; 2. Whether your name could appear on invoices submitted to Commonwealth Agency B by the Firm for work that you would perform on pre-existing contracts involving Component F; and 3. Whether you would be permitted to do work for the Firm on L contracts throughout the Commonwealth. 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 an A for Commonwealth Agency B, 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 position 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 employment with Commonwealth Agency B, 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: § 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 Confidential Advice, 10-580 May 18, 2010 Page 3 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 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 Confidential Advice, 10-580 May 18, 2010 Page 4 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 employment with Commonwealth Agency B would be Commonwealth Agency B in its entirety, including but not limited to Bureau D. Therefore, for the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of “persons” before Commonwealth Agency B. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall be addressed. With regard to your first and second specific questions, you are advised as follows. For purposes of applying the State Ethics Commission’s holding in Abrams/Webster, supra, the “unit” where you work would be Bureau D. Cf., [citations]. Per the submitted organization charts, Component F is not part of Bureau D. During the one-year period of applicability of Section 1103(g) of the Ethics Act, if you would perform work for the Firm on Commonwealth Agency B contracts that existed before you terminated employment with Commonwealth Agency B, and if such contracts would not involve the “unit” of Commonwealth Agency B where you formerly worked, specifically, Bureau D, your name could appear on routine invoices submitted to Commonwealth Agency B as to those particular pre-existing contracts if required by the regulations of Commonwealth Agency B. See, Abrams/Webster, supra. The submitted fact that your current position is physically located at Component F would not preclude your name from appearing on invoices for work performed on pre-existing contracts involving Component F subject to the aforesaid conditions. The ability to include your name on invoices subject to the aforesaid conditions would not impact the applicability of Section 1103(g) of the Ethics Act as to other activities. In response to your third specific inquiry, you are advised that during the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would not prohibit you from doing work for the Firm on L contracts throughout the Commonwealth subject to the condition that in so doing, you would not engage in prohibited representation before Commonwealth Agency B as delineated above. 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 or employment 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 P. Confidential Advice, 10-580 May 18, 2010 Page 5 Conclusion: As an A for Commonwealth Agency B, 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, 51 Pa. Code § 11.1 et seq. Upon termination of your employment with Commonwealth Agency B, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Commonwealth Agency B in its entirety, including but not limited to Bureau D. Section 1103(g) of the Ethics Act would restrict you from engaging in any activity that would constitute prohibited representation before Commonwealth Agency B for one year following termination of your employment with Commonwealth Agency B. 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