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HomeMy WebLinkAbout11-514 Confidential ADVICE OF COUNSEL March 18, 2011 11-514 This responds to your letter dated January 25, 2011, received February 2, 2011, 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 prohibitions or restrictions upon an A with Commonwealth Agency B with regard to: (1) performing the duties of his public position if he would submit his resume to a prospective employer, have preliminary discussions or interview with a prospective employer, or accept a position with a prospective employer; or (2) performing job duties for a new employer following termination of service with Commonwealth Agency B. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission based upon submitted facts that may be fairly summarized as follows. You are currently employed as an A with Commonwealth Agency/B in Component C. You have submitted copies of your official Commonwealth Agency B position description and an organization chart for Component C, both of which documents are incorporated herein by reference. A copy of the job classification specifications for the position of A (job code [number]) has been obtained and is also incorporated herein by reference. You state that in your position with Commonwealth Agency B, you supervise certain Commonwealth Agency B employees and assist in the supervision of the Ds with regard to [the performance of certain activities]. You state that you have never been on an E. You state that you are considering terminating your employment with Commonwealth Agency B and that if possible, you would prefer to continue working in the [type of field]. You state that you anticipate possible future employment with D(s). You state that you have provided or sent resumes to several Ds and have had preliminary discussions with such. Based upon the above submitted facts, you seek guidance as to whether the Ethics Act would impose any restrictions upon you with regard to performing the duties of your Commonwealth position if you would submit your resume to a prospective employer, have preliminary discussions or interview with a prospective employer, or accept a position with a prospective employer. Confidential Advice, 11-514 March 18, 2011 Page 2 You further seek guidance as to whether the Ethics Act would impose any restrictions upon you if you would terminate your Commonwealth employment. In particular, you pose the following questions: (1) Whether you would be permitted to work for a [type of firm], providing [type of services] to a Commonwealth Agency B Component other than Component/C; (2) Whether you would be permitted to provide [type of services] and expertise to a [type of consultant] that may have contracts with Commonwealth Agency B, other state agencies, and firms, where you would not have any direct contact with Commonwealth Agency B or its personnel and your services and hours would not be billed to Commonwealth Agency B; (3) Whether you would be permitted to accept a position at a [type of firm] that may have a contract with Commonwealth Agency B, where you would provide general IT/computer support or accounting functions or perform [type of work] for a F or a G unrelated to Commonwealth Agency B; and (4) Whether you would be permitted to talk to Commonwealth employees who would be your friends and who would be in no position of power to grant contracts. 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. As an A for Commonwealth Agency B, you are 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; [cites]. 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. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited from engaging in conduct that constitutes a conflict of interest: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. Confidential Advice, 11-514 March 18, 2011 Page 3 65 Pa.C.S. § 1103(a). The following terms pertaining to conflicts of interest are defined in the Ethics Act as follows: § 1102. Definitions "Conflict" or "conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member of his immediate family is associated. The term does not include an action having a de minimis economic impact or which affects to the same degree a class consisting of the general public or a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a member of his immediate family is associated. "Authority of office or employment." The actual power provided by law, the exercise of which is necessary to the performance of duties and responsibilities unique to a particular public office or position of public employment. 65 Pa.C.S. § 1102. Section 1103(a) of the Ethics Act prohibits a public official/public employee from using the authority of public office/employment or confidential information received by holding such a public position for the private pecuniary benefit of the public official/public employee himself, any member of his immediate family, or a business with which he or a member of his immediate family is associated. The use of authority of office is not limited merely to voting, but extends to any use of authority of office including, but not limited to, discussing, conferring with others, and lobbying for a particular result. Juliante, Order 809. 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 anything of monetary value 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. 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. 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”: Confidential Advice, 11-514 March 18, 2011 Page 4 § 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 "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 Confidential Advice, 11-514 March 18, 2011 Page 5 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 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 Component C. 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 a “person” before Commonwealth Agency B. Having established the above general principles, you are advised as follows. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed by being in your public position, in furtherance of an employment opportunity for yourself. Section 1103(a) of the Ethics Act would not restrict you in your private capacity from submitting resumes to, having conversations or interviews with, or otherwise pursuing employment with a prospective employer with which you have not had, and reasonably do not expect to have, any official involvement in your Commonwealth position. As for firms with which you have already had official involvement, an advisory cannot provide a ruling as to past conduct. However, you are generally advised that the question of whether a violation of Section 1103(a) could result from accepting an employment position with such a firm would depend upon the factual circumstances, such as, for example: how long ago you had official involvement as to such firm; the nature and extent of such involvement; whether at the time of your official involvement, your future employment with such firm could have been reasonably anticipated; and whether any actions that you took during your employment with the Commonwealth furthered the prospects for your future employment with such firm. With regard to prospective matters coming before you as a public employee, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to a prospective employer with which you would be pursuing or would reasonably anticipate pursuing employment, or with which you would have accepted employment. Confidential Advice, 11-514 March 18, 2011 Page 6 In each instance of a conflict of interest, you would be required to abstain fully from participation. As for your specific questions regarding Section 1103(g) of the Ethics Act, you are advised as follows. In response to your first question, 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 prohibit you from providing [type of services] to any Commonwealth Agency B Component for a [type of firm] as the performance of such activity(ies) would necessarily involve prohibited representation before your former governmental body. In response to your second and third questions, you are advised as follows. Section 1103(g) of the Ethics Act would not restrict you from: (1) providing [type of services] and expertise to a [type of consultant] that may have contracts with Commonwealth Agency B, other state agencies, and firms, where you would not have any direct contact with Commonwealth Agency B or its personnel and your services and hours would not be billed to Commonwealth Agency B; or (2) accepting a position at a [type of firm] that may have a contract with Commonwealth Agency B, where you would provide general IT/computer support or accounting functions or perform [type of work] for a F or a G unrelated to Commonwealth Agency B, subject to the condition that in performing the aforesaid activity(ies), you would not engage in prohibited representation before Commonwealth Agency B during the first year following termination of your employment with Commonwealth Agency B. With regard to your fourth question, you are advised that Section 1103(g) of the Ethics Act would not restrict you from having contact with friends employed with the Commonwealth as long as in so doing, you would not engage in conduct that would constitute prohibited representation in contravention of Section 1103(g). Conti, Opinion 07-007. 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 H. Conclusion: As an A with Commonwealth Agency B, you are a public employee subject to the provisions of 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. Section 1103(a) of the Ethics Act would prohibit you from using the authority of your public position, or confidential information accessed by being in your public position, in furtherance of an employment opportunity for yourself. Section 1103(a) of the Ethics Act would not restrict you in your private capacity from submitting resumes to, having conversations or interviews with, or otherwise pursuing employment with a prospective employer with which you have not had, and reasonably do not expect to have, any official involvement in your Commonwealth position. As for firms with which you have already had official involvement, an advisory cannot provide a ruling as to past conduct. However, you are generally advised that the question of whether a violation of Section 1103(a) could result from accepting an employment position with such a firm would depend upon the factual circumstances, such as, for example: how long ago you had official involvement as to such firm; the nature and extent of such involvement; whether at the time of your official involvement, your future employment with such firm could have been reasonably anticipated; and whether any actions that you took during your employment with the Commonwealth furthered the prospects for your future employment with such firm. With regard to prospective matters coming Confidential Advice, 11-514 March 18, 2011 Page 7 before you as a public employee, you would have a conflict of interest pursuant to Section 1103(a) of the Ethics Act in matters pertaining to a prospective employer with which you would be pursuing or would reasonably anticipate pursuing employment, or with which you would have accepted employment. In each instance of a conflict of interest, you would be required to abstain fully from participation. 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 Component C. 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