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HomeMy WebLinkAbout12-536 Confidential ADVICE OF COUNSEL May 10, 2012 12-536 This responds to your letter of March 21, 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 a Member of the A (“State Legislator”) following termination of service with the Commonwealth. Facts: You request a confidential advisory from the Pennsylvania State Ethics Commission on behalf of State Legislator B, hereinafter referred to as “the State Legislator.” You have submitted facts that may be fairly summarized as follows. The State Legislator’s current term of office expires on [date], and he will not be a candidate for reelection. As a Member of the A, the State Legislator has served on several legislative committees. In particular part, during the [year-year] legislative session, the State Legislator served as the C of the [name of committee] (the “Committee”). You state that the responsibilities of the Committee include [certain functions] and that the Committee plays no part in [certain activities]. The State Legislator’s duties as the C of the Committee included [certain duties]. The State Legislator has been offered a full-time consulting position with a [type of firm] named [name of firm] (the “Firm”). You state that the State Legislator’s employment with the Firm will not commence until his present term with the A has been completed. The Firm is headquartered in [city, state]. It is anticipated that the State Legislator will [perform certain functions] for the Firm in either [city, state] or [city, state] and that he will be responsible for [performing certain activities] across the state and region. The State Legislator will [perform certain duties]. You state that it is anticipated that the State Legislator will utilize his experience in the D and spend approximately 50% of his time consulting for Es. You state that the State Legislator will register if requested by a client to lobby in Pennsylvania and that the State Legislator will not lobby A for one year after leaving office. Based upon the above submitted facts, you seek guidance as to whether the State Legislator’s future employment as a consultant for the Firm would violate the Ethics Act, and if not, what limitations, if any, should be placed upon the State Legislator’s employment to assure continuing compliance with the Ethics Act. Confidential Advice, 12-536 May 10, 2012 Page 2 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. 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. 65 Pa.C.S. § 1103(a). The following terms related to Section 1103(a) 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 Confidential Advice, 12-536 May 10, 2012 Page 3 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. The State Legislator would be considered a public official subject to the Ethics Act and the Regulations of the State Ethics Commission. See, 65 Pa.C.S. § 1102; 51 Pa. Code § 11.1. Consequently, upon termination of service with the A, the State Legislator would become a “former public official” 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. Confidential Advice, 12-536 May 10, 2012 Page 4 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. 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 the State Legislator would be deemed to have been associated upon termination of service with the A would be the A in its entirety. Therefore, for the first year following termination of service with the A, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the A. Having established the above general principles, you are advised as follows. Section 1103(g) of the Ethics Act would not prohibit the State Legislator from accepting employment as a consultant for the Firm. However, during the first year following termination of the State Legislator’s service with the A, Section 1103(g) of the Ethics Act would prohibit the State Legislator from engaging in any activity(ies) that would involve prohibited representation before the A as set forth above. Confidential Advice, 12-536 May 10, 2012 Page 5 With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that to the extent the activities of a state legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the State Ethics Commission. See, Corrigan, Opinion 87-001. To the extent the State Legislator’s conduct would fall within the purview of the Ethics Act and the State Ethics Commission, the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of the State Legislator’s prospectively entering into a business relationship with the Firm subject to the conditions that the State Legislator: (1) did not use the authority of his public position in matter(s) pertaining to the Firm when he had an actual or reasonable expectation that he would enter into a business arrangement with the Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2) did not otherwise use the authority of his public position or confidential information received as a result of being in his public position in furtherance of securing a business arrangement with the Firm or other private pecuniary benefit relating to the Firm. Cf., Desmond, Opinion 08-004. Based upon the facts that have been submitted, this Advice has addressed Section 1103(a) and Section 1103(g) only. It is noted 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: As a state legislator, State Legislator B, hereinafter referred to as “the State Legislator,” would be considered a public official 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. Upon termination of his service with the A, the State Legislator would become a “former public official” subject to Section 1103(g) of the Ethics Act. The former governmental body would be the A in its entirety. For the first year following termination of the State Legislator’s service with the A, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before the A. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit the State Legislator from accepting employment as a consultant for a [type of firm] named [name of firm] (the “Firm”). However, during the first year following termination of the State Legislator’s service with the A, Section 1103(g) of the Ethics Act would prohibit the State Legislator from engaging in any activity(ies) that would involve prohibited representation before the A as set forth above. With regard to Section 1103(a) of the Ethics Act, an advisory cannot provide a ruling as to past conduct. You are generally advised that to the extent the activities of a state legislator relate to “legislative actions” (introducing, considering, debating, voting, enacting, adopting, or approving legislation), they are constitutionally controlled and are exempt from the purview of the Ethics Act and the State Ethics Commission. To the extent the State Legislator’s conduct would fall within the purview of the Ethics Act and Confidential Advice, 12-536 May 10, 2012 Page 6 the State Ethics Commission, the elements of a violation of Section 1103(a) of the Ethics Act would not be established as a result of the State Legislator’s prospectively entering into a business relationship with the Firm subject to the conditions that the State Legislator: (1) did not use the authority of his public position in matter(s) pertaining to the Firm when he had an actual or reasonable expectation that he would enter into a business arrangement with the Firm or would otherwise receive a private pecuniary benefit relating to the Firm; and (2) did not otherwise use the authority of his public position or confidential information received as a result of being in his public position in furtherance of securing a business arrangement with the Firm or other private pecuniary benefit relating to the Firm. 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