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HomeMy WebLinkAbout12-530 Confidential ADVICE OF COUNSEL April 20, 2012 12-530 This responds to your letters of February 27, 2012, and March 1, 2012, 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 restrictions upon employment of an A following termination of employment with Commonwealth Department B. Facts: You request a confidential 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 an A with Commonwealth Department B, in which capacity you are the C for the D Bureau within Commonwealth Department B’s E Office. You have submitted copies of your official Commonwealth Department B position description and the job classification specifications for the position of A (job code [number]), both of which documents are incorporated herein by reference. You have also submitted applicable organization charts, which are also incorporated herein by reference. You state that in your current position with Commonwealth Department B, you are responsible for [certain matters]. You or your staff may have involvement in [certain activities]. You are contemplating leaving your employment with Commonwealth Department B to work for an F [type of firm] (the “Firm”) that has numerous contracts with Commonwealth Department B. You state that you may also buy a non-controlling interest in the Firm. You state that all of the contracts under which F Gs have been hired are contracts with one of the Hs and that such contracts are awarded at the H level. You further state that you are not aware of any contract where the E Office hired the F G and that you have not participated on any H team which hired an F G for at least the last five years. You state that you are an I J. You further state that pursuant to Section [number] of the K Code, [cite], a person whose L is M by Commonwealth Department B has the right to be reimbursed up to [amount] for [certain expenses]. Based upon the above submitted facts, you pose the following questions: Confidential Advice, 12-530 April 20, 2012 Page 2 (1) Whether it would be permissible for you to purchase an ownership interest in the Firm, and if you would purchase such an ownership interest, whether your name could be listed as an owner or employee when the Firm would be soliciting new contracts with Commonwealth Department B; (2) Whether it would be permissible during the first year following termination of your employment with Commonwealth Department B for you to work for the Firm on existing Commonwealth Department B projects already under contract and for your name to be listed on invoices submitted to Commonwealth Department B by the Firm for the work that you would perform; (3) If you would be permitted to work on Commonwealth Department B projects during the first year following termination of your employment with Commonwealth Department B, whether you could communicate with Commonwealth Department B personnel regarding project matters, and whether your name could appear in print as someone who completed a form or notarized a document when your name would be seen by Commonwealth Department B personnel; (4) If the answers to questions 2 and 3 above are “no,” then what work, if any, would you be permitted to do on existing Commonwealth Department B projects; (5) Whether it would be permissible during the first year following termination of your employment with Commonwealth Department B for you to work for the Firm on local, non-Commonwealth Department B projects where Commonwealth Department B would have oversight responsibility to ensure compliance with state and federal laws and a person from Commonwealth Department B might see your name as someone who completed a form or notarized a document; and (6) Whether it would be permissible during the first year following termination of your employment with Commonwealth Department B for you to be hired to perform work as a J by a person whose L has been M by Commonwealth Department B where such person would then ask Commonwealth Department B for reimbursement for your services pursuant to Section [number] of the K Code. 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 an A for Commonwealth Department B, 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; [cite]; [cite]. 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 Confidential Advice, 12-530 April 20, 2012 Page 3 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 Commonwealth Department 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”: § 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 Confidential Advice, 12-530 April 20, 2012 Page 4 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. 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 your employment with Commonwealth Department B would be Commonwealth Department B in its entirety, including but not limited to the D Bureau. Therefore, for the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department B. Having established the above general principles, your specific questions shall now be addressed. In response to your first question, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from purchasing an ownership interest in the Firm. However, during the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would prohibit you from engaging in any activity(ies) that would involve prohibited representation before Commonwealth Department B as set forth above. Section 1103(g) of the Ethics Act would prohibit you from being identified as an owner or employee of the Firm when the Confidential Advice, 12-530 April 20, 2012 Page 5 Firm would be soliciting new contracts with Commonwealth Department B as such would necessarily involve prohibited representation before Commonwealth Department B. With regard to your second and third questions, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from working on Commonwealth Department B projects during the first year following termination of your employment with Commonwealth Department B subject to the condition that in so doing, you would not engage in prohibited representation before Commonwealth Department B. Section 1103(g) of the Ethics Act would prohibit you from communicating with Commonwealth Department B personnel regarding project matters and would prohibit you from being identified as someone who completed a form or notarized a document when your name would be seen by Commonwealth Department B personnel as such would necessarily involve prohibited representation before Commonwealth Department B. You are further advised that during the one-year period of applicability of Section 1103(g) of the Ethics Act, as a general rule, your name could not be listed on invoices submitted to Commonwealth Department B by the Firm. However, if you would perform work for the Firm on Commonwealth Department B contracts that existed before you terminated employment with Commonwealth Department B, and if such contracts would not involve the “unit” of Commonwealth Department B where you formerly worked, specifically, the D Bureau, your name could appear on routine invoices submitted to Commonwealth Department B as to those particular pre-existing contracts if required by the regulations of Commonwealth Department B. See, Abrams/Webster, supra. However, the foregoing is limited to the submission of billing hours. 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. Your fourth question is general and has been addressed above to the extent that it can be addressed. As to your fifth question, you are advised as follows. During the period of applicability of Section 1103(g) of the Ethics Act, it would appear to be impossible, as a practical matter, for you to work for the Firm on local, non-Commonwealth Department B projects without running afoul of Section 1103(g) when Commonwealth Department B would have oversight responsibility to ensure compliance with state and federal laws and a person from Commonwealth Department B might see your name as someone who completed a form or notarized a document. In response to your sixth question, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit you from being hired to perform work as a J by a person whose L has been M by Commonwealth Department B. However, during the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would prohibit you from submitting or acting to further the submission of any information to Commonwealth Department B that would identify you as the provider of N services to a person seeking reimbursement of N fees from Commonwealth Department B under the K Code. Such identifying information would include but would not be limited to your name and state N O. You are advised that “acting to further the submission of information to Commonwealth Department B that would identify you as the provider of N services” would include but would not be limited to placing such identifying information on document(s) that you know or reasonably expect will be submitted to Commonwealth Department B. Confidential Advice, 12-530 April 20, 2012 Page 6 During such times as Section 1103(g) of the Ethics Act would not be applicable to you, Section 1103(g) would not restrict you from submitting information to Commonwealth Department B that would identify you as the provider of N services to a person, regardless of when such services were provided. 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 P. Conclusion: As an A for Commonwealth Department B, 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 your employment with Commonwealth Department B, you would become a "former public employee" subject to Section 1103(g) of the Ethics Act. The former governmental body would be Commonwealth Department B in its entirety, including but not limited to the D Bureau. For the first year following termination of your employment with Commonwealth Department B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Department 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 Confidential Advice, 12-530 April 20, 2012 Page 7 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