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HomeMy WebLinkAbout11-564 ADVICE OF COUNSEL November 15, 2011 11-564 This responds to your letters dated October 10, 2011, and October 14, 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 employees of a charter school with regard to terminating their employment with the charter school to provide services to the charter school under a [type of agreement] between a [type of corporation] and the charter school. Facts: As A for [name of charter school], hereinafter referred to as the “Charter School,” you have been authorized by certain employees of the Charter School, hereinafter referred to as “the Individuals,” to request a confidential advisory from the Pennsylvania State Ethics Commission on their behalf. You have submitted facts, the material portion of which may be fairly summarized as follows. The Charter School and a [type of corporation] named [name of corporation], hereinafter referred to as the “Corporation,” are currently parties to a B Agreement. Pursuant to the terms of the B Agreement, the Corporation provides the Charter School with comprehensive [type of services] to support [certain activities]. As a result of reduced education funding from the Commonwealth, the Charter School will receive less revenue per student for the fiscal year beginning July 1, 2011. You state that as part of an effort to make budget cuts, the Charter School has requested that the Corporation provide it with additional services. You state that the Corporation has agreed to amend the B Agreement so that services which are currently provided by the Individuals would instead be provided by the Corporation. The Individuals would cease employment with the Charter School and would continue to perform the same services for the Charter School as part of the services provided by the Corporation under the B Agreement. You state that the fee for services paid by the Charter School pursuant to the B Agreement would not be increased as a result of the provision of the aforesaid additional services. Based upon the above submitted facts, you ask whether the Ethics Act would permit the Individuals to provide services to the Charter School under the B Agreement during the first year following termination of their employment with the Charter School. 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 Confidential Advice, 11-564 November 15, 2011 Page 2 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. Preliminarily, it is noted that the submitted facts do not include official job descriptions for the Individuals’ positions of employment with the Charter School. This Advice assumes, without deciding, that each of the Individuals, in his or her capacity as a Charter School employee, would be considered a “public employee” subject to the Ethics Act and the Regulations of the State Ethics Commission, 51 Pa. Code § 11.1 et seq. Based upon the aforesaid assumption, upon termination of employment with the Charter School, each of the Individuals 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 or 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 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. Confidential Advice, 11-564 November 15, 2011 Page 3 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 or 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. 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 each of the Individuals would be deemed to have been associated upon termination of such Individual’s employment with the Charter School would be the Charter School in its entirety. Therefore, as to each Individual, for the first year following termination of employment with the Charter School, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Charter School. You are advised that as to each Individual, during the first year following termination of such Individual’s employment with the Charter School, Section 1103(g) of the Ethics Act would prohibit such Individual from providing services to the Charter School under the B Agreement for promised or actual compensation. Confidential Advice, 11-564 November 15, 2011 Page 4 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. Conclusion: This Advice assumes, without deciding, that in his or her capacity as an employee of [name of charter school], hereinafter referred to as the “Charter School,” each of the individuals (“Individuals”) on whose behalf you have inquired is 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 aforesaid assumption, upon termination of employment with the Charter School, each of the Individuals would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which each of the Individuals would be deemed to have been associated upon termination of such Individual’s employment with the Charter School would be the Charter School in its entirety. As to each Individual, for the first year following termination of employment with the Charter School, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the Charter School. The restrictions as to representation outlined above must be followed. Based upon the submitted facts that: (1) the Charter School and a [type of corporation] named [name of corporation], hereinafter referred to as the “Corporation,” are currently parties to a B Agreement; (2) pursuant to the terms of the B Agreement, the Corporation provides the Charter School with comprehensive [type of services] to support [certain activities]; (3) as part of an effort to make budget cuts, the Charter School has requested that the Corporation provide it with additional services; (4) the Corporation has agreed to amend the B Agreement so that services which are currently provided by the Individuals would instead be provided by the Corporation; (5) the Individuals would cease employment with the Charter School and would continue to perform the same services for the Charter School as part of the services provided by the Corporation under the B Agreement; and (6) the fee for services paid by the Charter School pursuant to the B Agreement would not be increased as a result of the provision of the aforesaid additional services, you are advised as follows. As to each Individual, during the first year following termination of such Individual’s employment with the Charter School, Section 1103(g) of the Ethics Act would prohibit such Individual from providing services to the Charter School under the B Agreement for promised or actual compensation. 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. Confidential Advice, 11-564 November 15, 2011 Page 5 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