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HomeMy WebLinkAbout10-600 Johnson ADVICE OF COUNSEL July 20, 2010 Trudy Johnson 2331 Forest Hills Drive Harrisburg, PA 17112 10-600 Dear Ms. Johnson: This responds to your letters dated June 16, 2010, and June 22, 2010, 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 an individual who, following retirement from the Commonwealth of Pennsylvania, has provided services to the Pennsylvania Department of Public Welfare (“DPW”) as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1), with regard to contracting with the Office of Health Care Reform to work as a self-employed consultant following the termination of the individual’s service as an annuitant with DPW. 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. Effective June 27, 2009, you retired from your employment as an Office of Income Maintenance Policy and Program Manager with DPW. You have submitted a copy of your official DPW position description. Following your retirement from the Commonwealth, you returned to work with DPW as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), working as a Human Services Program Specialist from October 13, 2009, through December 31, 2009. You have submitted a copy of the “Request for Employment of Annuitant” pertaining to your service as an annuitant for the aforesaid period, which document is incorporated herein by reference. A copy of the job classification specifications for the position of Human Services Program Specialist (job code 48815) has been obtained and is also incorporated herein by reference. Your period of service as an annuitant with DPW under the 95-day Annuitant Program was extended effective January 1, 2010. You state that your duties with DPW under the 95-day Annuitant Program remain the same. You state that you would like to begin working as a self-employed consultant to the Office of Health Care Reform following the termination of your service as an Johnson, 10-600 July 20, 2010 Page 2 annuitant with DPW. You state that in such capacity, you would not be working for a private or public consulting agency. You have submitted a list of the consulting services that you would provide to the Office of Health Care Reform as a self-employed consultant and a copy of the Executive Order that established the Office of Health Care Reform (Executive Order No. 2003-1), both of which documents are incorporated herein by reference. Based upon the above submitted facts, you pose the following specific questions: 1. Whether the Ethics Act would permit you to enter into a contract with the Office of Health Care Reform to work as a self-employed consultant following the termination of your service as an annuitant with DPW; and 2. Whether working as a consultant would jeopardize the pension that you currently receive from 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. 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 “Request for Employment of Annuitant” and the job classification specifications for the position of Human Services Program Specialist, the necessary conclusion is that when you commenced providing services to DPW as an annuitant on October 13, 2009, 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 would cease providing such annuitant services, 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: Johnson, 10-600 July 20, 2010 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 “represent” 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 Johnson, 10-600 July 20, 2010 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. Under the facts that you have submitted, when you would cease providing services to DPW in your current annuitant position, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act, and the one-year period of applicability of Section 1103(g) would commence. The governmental body with which you would be deemed to have been associated upon termination of the aforesaid service would be DPW in its entirety. Therefore, until the expiration of a full one-year period following your termination of service as an annuitant with DPW, or until you would resume providing services to DPW under the 95-day Annuitant 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 DPW with promised or actual compensation as set forth above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific questions shall now be considered. In response to your first specific question, you are advised as follows. The Ethics Act would not prohibit you from entering into a contract with the Office of Health Care Reform to work as a self-employed consultant following the termination of your service as an annuitant with DPW under the 95-day Annuitant Program. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from engaging in any activity(ies) that would involve prohibited representation before DPW as outlined above. Your second specific question does not fall within the jurisdiction of the State Ethics Commission as it does not involve an interpretation of the Ethics Act. Because the State Ethics Commission does not issue general legal advice on matters not within its statutory jurisdiction, your second specific question cannot be addressed in this advisory. 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, or confidential information received by being in the public position, 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. Johnson, 10-600 July 20, 2010 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: On October 13, 2009, when you commenced providing services to the Pennsylvania Department of Public Welfare (“DPW”) as an annuitant under the 95- day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), you became 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. When you would cease providing services to DPW in your current annuitant position, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of the aforesaid service would be DPW in its entirety. Until the expiration of a full one-year period following your termination of service as an annuitant with DPW, or until you would resume providing services to DPW under the 95-day Annuitant 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 DPW with promised or actual compensation as set forth above. The restrictions as to representation outlined above must be followed. The Ethics Act would not prohibit you from entering into a contract with the Office of Health Care Reform to work as a self-employed consultant following the termination of your service as an annuitant with DPW under the 95-day Annuitant Program. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from engaging in any activity(ies) that would involve prohibited representation before DPW as outlined above. The proprietyof 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