Loading...
HomeMy WebLinkAbout10-612 Fleming ADVICE OF COUNSEL September 30, 2010 Justin C. Fleming st 425 N. 21 Street, Suite 401 Camp Hill, PA 17011-2223 10-612 Dear Mr. Fleming: This responds to your letter dated August 12, 2010, and your two faxed transmissions received August 17, 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 employment of a Press Secretary 2 for the Pennsylvania Department of Agriculture 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 a Press Secretary 2 for the Pennsylvania Department of Agriculture (“Department of Agriculture”). You have submitted copies of a job description entitled “Pennsylvania Department of Agriculture Communications Specialist (Press Secretary) Job Description” and the job classification specifications for the position of Press Secretary 2 (job code 05910), both of which documents are incorporated herein by reference. You state that each department’s press secretary has a liaison in the Governor’s Office of Communications and Press (“Office of Communications”) with whom the press secretary will discuss complex inquiries from reporters and other matters within that department. You state that in your case, discussions with your liaison in the Office of Communications occur at least a few times per week. You further state that your duties as a Press Secretary 2 for the Department of Agriculture include attending regular meetings with other department and agency press secretaries and office staff of the Office of Communications to discuss the initiatives and priorities of Governor Edward G. Rendell. You state that while your Employee Performance Reviews are typically done within the Department of Agriculture, your job performance is also noted by your liaison Fleming, 10-612 September 30, 2010 Page 2 and upper management within the Office of Communications. You state that you are an at-will employee and that the Secretary of the Department of Agriculture, the Governor’s Press Secretary, or the Director of Communications can relieve you of your duties at any time. You state that you will soon join the National Association of Social Workers – Pennsylvania (“the Association”) in the position of Government Relations Director. You state that in the aforesaid position, there may be a social work component related to food distribution. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you in your new position with the Association, particularly with regard to engaging in legislative advocacy with personnel in the administration of Governor Rendell and speaking with personnel from the Department of Agriculture. 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 a Press Secretary 2 for the Department of Agriculture, 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; Elliott, Advice 03-505. 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 Commonwealth employment, 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: Fleming, 10-612 September 30, 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 influence the former governmental body or to otherwise make known to that body the representation of, or work for, the new employer. Fleming, 10-612 September 30, 2010 Page 4 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. Based upon the submitted facts, 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 the Department of Agriculture in its entirety, as well as the Office of Communications. 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 delineated above. You are advised that during the first year following termination of your Commonwealth employment, Section 1103(g) of the Ethics Act would restrict you from performing any job duties as Government Relations Director for the Association that would involve prohibited representation before your former governmental body as outlined above. Section 1103(g) of the Ethics Act would not prohibit you from engaging in legislative advocacy with other personnel in state government during the first year following termination of your Commonwealth employment subject to the condition that in so doing, you would not engage in any activity that would involve 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 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. 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 a Press Secretary 2 for the Pennsylvania Department of Agriculture (“Department of Agriculture”), yo u 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. Based upon the submitted facts that: (1) each department’s press secretary has a liaison in the Governor’s Office of Communications and Press (“Office of Communications”) with whom the press secretary will discuss complex inquiries from reporters and other matters within that department; (2) in your case, discussions with your liaison in the Office of Communications occur at least a few times per week; (3) your duties as a Press Secretary 2 for the Department of Agriculture include attending regular meetings with other department and agency press secretaries and office staff of the Office of Communications to discuss the initiatives and priorities of Governor Edward G. Rendell; (4) while Employee Performance Reviews are typically done within the Department of Agriculture, your job performance is also noted by your liaison and Fleming, 10-612 September 30, 2010 Page 5 upper management within the Office of Communications; (5) you are an at-will employee, and the Secretary of the Department of Agriculture, the Governor’s Press Secretary, or the Director of Communications can relieve you of your duties at any time; and (6) you will soon join the National Association of Social Workers – Pennsylvania (“the Association”) in the position of Government Relations Director, you are advised as follows. Upon termination of your Commonwealth employment, 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 Commonwealth employment, hereinafter collectively referred to as your “former governmental body,” would be the Department of Agriculture in its entirety, as well as the Office of Communications. 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 delineated above. In particular, Section 1103(g) of the Ethics Act would restrict you from performing any job duties as Government Relations Director for your new employer, the Association, which would involve prohibited representation before your former governmental body as outlined above. Section 1103(g) of the Ethics Act would not prohibit you from engaging in legislative advocacy with other personnel in state government during the first year following termination of your Commonwealth employment subject to the condition that in so doing, you would not engage in any activity that would involve prohibited representation before your former governmental body. 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