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HomeMy WebLinkAbout10-617-S Shafer ADVICE OF COUNSEL December 22, 2010 Amanda Shafer 1208 Capitol Street Harrisburg, PA 17102 10-617-S Dear Ms. Shafer: This responds to your letters dated October 20, 2010, and November 6, 2010 (postmarked November 10, 2010), by which you requested supplemental advice 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 Administrative Officer 2 following termination of employment with the Pennsylvania Historical and Museum Commission (“PHMC”). Facts: By letter dated August 29, 2010, you submitted an initial request for an advisory from the Pennsylvania State Ethics Commission regarding the post- employment restrictions of Section 1103(g) of the Ethics Act, 65 Pa.C.S. § 1103(g). In your August 29, 2010, advisory request letter, you stated that you were employed as an Administration Officer 2, in the role of Webmaster, for the PHMC until May 2009, at which time you left the aforesaid position. You stated that you recently had been contacted by the PHMC with regard to a possible contract to perform web design and maintenance for the PHMC, and you sought guidance as to whether Section 1103(g) of the Ethics Act would impose any restrictions or prohibitions upon you with regard to contracting to perform work for the PHMC. In response to your initial advisory request, Shafer, Advice 10-617 was issued to you on October 15, 2010. The Advice noted that the submitted facts did not include a position description for your former position with the PHMC. Advice of Counsel 10-617 concluded as follows: This Advice assumes, without deciding, that in your former capacity as an Administration Officer 2 for the Pennsylvania Historical and Museum Commission (“PHMC”), you would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission. The restrictions of Section 1103(g) of the Ethics Act, which apply to former public officials and former public employees, apply for one year following termination of service in the public position. Based upon the submitted fact that you terminated service with the PHMC in May 2009, which was more than one year ago, the restrictions of Section 1103(g) of the Shafer, 10-617-S December 22, 2010 Page 2 Ethics Act do not currently apply to you. The propriety of the proposed conduct has only been addressed under the Ethics Act. Shafer, Advice of Counsel 10-617, at 2. In your October 20, 2010, advisory request letter, you state that your initial advisory request letter dated August 29, 2010, contained a typographical error and that your service with the PHMC terminated in May 2010 and not May 2009. You further state that you own 60% of a business named “Creative Midtown, LLC” (“the Business”) and that any possible contract work with the PHMC would be between the Business and PHMC, with you performing most of the web work. By letter dated November 6, 2010, you submitted a copy of your official PHMC position description, which document is incorporated herein by reference. It is noted that said position description lists your job title and working title as Administrative Officer 2. A copy of the job classification specifications for the position of Administrative Officer 2 (job code 08640) has been obtained and is also incorporated herein by reference. In light of the above additional facts, you request a supplemental advisory. 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 response to your request for supplemental advice, you are advised as follows. In the former capacity as an Administrative Officer 2 for the PHMC, 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 your employment with the PHMC, 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”: Shafer, 10-617-S December 22, 2010 Page 3 § 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. 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 Shafer, 10-617-S December 22, 2010 Page 4 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 employment with the PHMC is the PHMC in its entirety. Therefore, for the first year following termination of your employment with the PHMC, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in any activity that would constitute the “representation” of a “person,” with promised or actual compensation, before the PHMC. As noted by Advice of Counsel 10-617, a former public official or former public employee may not contract with his former governmental body during the first year following termination of public service, because such contracting would constitute prohibited representation before the former governmental body in contravention of Section 1103(g) of the Ethics Act. Shafer, Advice of Counsel 10-617, at 2 (citing Shaub, Order 1242; Shienvold, Opinion 04-001; Confidential Opinion, 97-008; Confidential Opinion, 93-005). Having set forth the restrictions of Section 1103(g) of the Ethics Act, you are advised that during the first year following termination of your employment with the PHMC, Section 1103(g) would prohibit you, as a 60% owner of the Business, from contracting to perform work for the PHMC. Cf., Shaub, supra; Shienvold, supra; Confidential Opinion, 97-008; Confidential Opinion, 93-005. If contracting would occur between the Business and the PHMC without any involvement on your part, you would still be prohibited from engaging in any other activity that would constitute prohibited representation before the PHMC, such as, for example, having contact with the PHMC regarding the performance of the contract. The propriety of the proposed conduct has only been addressed under the Ethics Act. Conclusion: In the former capacity as an Administrative Officer 2 for the Pennsylvania Historical and Museum Commission (“PHMC”), 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, Shafer, 10-617-S December 22, 2010 Page 5 51 Pa. Code § 11.1 et seq. Upon termination of your employment with the PHMC , you became a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body is the PHMC in its entirety. Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity that would constitute the “representation” of a “person,” with promised or actual compensation, before the PHMC for one year following termination of your employment with the PHMC. The restrictions as to representation outlined above must be followed. During the first year following termination of your employment with the PHMC, Section 1103(g) would prohibit you, as a 60% owner of a business named “Creative Midtown, LLC” (“the Business”), from contracting to perform work for the PHMC. If contracting would occur between the Business and the PHMC without any involvement on your part, you would still be prohibited from engaging in any other activity that would constitute prohibited representation before the PHMC, such as, for example, having contact with the PHMC regarding the performance of the contract. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. The propriety of the proposed conduct has only been addressed under the Ethics Act. Pursuant to Section 1107(11), 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