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HomeMy WebLinkAbout11-501 Whitcraft ADVICE OF COUNSEL January 10, 2011 Kelly A. Whitcraft 221 Elfner Road Red Lion, PA 17356 11-501 Dear Ms. Whitcraft: This responds to your letter dated November 18, 2010, and your undated letter received December 10, 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 Policy Director with a job title of Welfare Program Executive 1 following termination of service with the Pennsylvania Department of Public Welfare (“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. At the time that you submitted your inquiry, you were employed as the Policy Director for the Office of Developmental Programs within DPW. You have submitted a copy of your official DPW position description, which document is incorporated herein by reference. It is noted that said position description lists your job title as Welfare Program Executive 1. You have further submitted a copy of the job classification specifications for the position of Welfare Program Executive 1 (job code 49880), which document is also incorporated herein by reference. You stated that you commenced leave from your employment with DPW effective July 16, 2010. You stated that you would be formally resigning from your employment with DPW effective December 10, 2010, and that you would be commencing employment with the Disability Rights Network of Pennsylvania (“DRN”). You stated that your work at DRN would involve primary responsibilities of direct advocacy for people with developmental disabilities, with a minimal focus on policy and systemic issues, and that such advocacy would be performed under a contract (“the Advocacy Contract”) between DPW and DRN. Based upon the above submitted facts, you pose the following questions: (1) Whether Section 1103(g) of the Ethics Act would impose any restrictions upon your activities in your new position with DRN, including contacting and interacting with DPW; Whitcraft, 11-501 January 10, 2011 Page 2 (2) Whether, during the one-year period of applicability of Section 1103(g) of the Ethics Act, DRN would be able to bill DPW under the Advocacy Contract for hours of advocacy that you would perform on behalf of Pennsylvanians with disabilities; and (3) Whether the restrictions of Section 1103(g) of the Ethics Act would apply to you for one year following July 16, 2010, as the effective date of the commencement of your leave, or for one year following December 10, 2010, as the effective date of your resignation from employment with DPW. 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 Policy Director for DPW, with a job title of Welfare Program Executive 1, 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 DPW, 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 Whitcraft, 11-501 January 10, 2011 Page 3 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. 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. Whitcraft, 11-501 January 10, 2011 Page 4 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, the one-year period of applicability of Section 1103(g) of the Ethics Act would be calculated from the effective date of your resignation from DPW, not from the effective date of your leave. This is because while you were on leave, you were still in an employment status with DPW. Cf., Kennedy, Advice 99-582. The governmental body with which you would be deemed to have been associated upon termination of employment with DPW would be DPW in its entirety, including but not limited to the Office of Developmental Programs. Therefore, for one year following December 10, 2010--the effective date of your resignation from DPW-- Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before DPW. In particular, Section 1103(g) of the Ethics Act would restrict you from performing any job duties for DRN that would involve prohibited representation before DPW as outlined above. During the one-year period of applicability of Section 1103(g) of the Ethics Act, Section 1103(g) generally would prohibit the inclusion of your name on DRN invoices submitted to DPW. However, if you would perform work for DRN on a DPW contract that existed before you terminated service with DPW, and if such contract would not involve the “unit” of DPW where you formerly worked, specifically the Office of Developmental Programs, your name could appear on routine invoices submitted to DPW as to that particular pre-existing contract if required by the regulations of DPW. See, Abrams/Webster, supra. 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. 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; 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. Specifically not addressed herein is the applicability of the Governor’s Code of Conduct. Conclusion: As a Policy Director for the Pennsylvania Department of Public Welfare (“DPW”), with a job title of Welfare Program Executive 1, 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 employment with DPW, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body would be DPW in its entirety, including but not limited to the Office of Developmental Programs for which you served as Policy Whitcraft, 11-501 January 10, 2011 Page 5 Director. For one year following December 10, 2010--the effective date of your resignation from DPW--Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before DPW. In particular, Section 1103(g) of the Ethics Act would restrict you from performing any job duties for your new employer, the Disability Rights Network of Pennsylvania, which would involve prohibited representation before DPW as outlined above. 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