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HomeMy WebLinkAbout12-557 Pugliese ADVICE OF COUNSEL August 14, 2012 Anthony J. Pugliese 2205 Strawberry Square Harrisburg, PA 17101 12-557 Dear Mr. Pugliese: This responds to your letters of June 18, 2012, and July 12, 2012, 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 Legislative Specialist 1 following termination of employment with the Pennsylvania Department of Community and Economic Development (“DCED”). 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. You were employed as a Legislative Specialist 1 with DCED from January 19, 2011, until January 26, 2012. You have submitted copies of a position description for your former position as a Legislative Specialist 1 with DCED and the job classification specifications for the position of Legislative Specialist 1 (job code 07252), both of which documents are incorporated herein by reference. In your former capacity as a Legislative Specialist 1, you reported directly to the Secretary of DCED. Your duties included advising DCED on legislative issues and serving as a point of contact for the General Assembly on DCED issues. You state that you recently became employed with Pugliese Associates, a government relations firm in Harrisburg, Pennsylvania. You state that part of your duties with Pugliese Associates require interaction with Members and staff of the General Assembly and with offices under the Governor’s jurisdiction, including the Office of the Governor. You seek guidance as to whether the Ethics Act would impose any restrictions upon you in your new position with Pugliese Associates. In particular, you pose the following questions: (1) Whether you would be permitted to lobby the Members and staff of the Pennsylvania Senate (“Senate”); (2) Whether you would be permitted to lobby the Members and staff of the Pennsylvania House of Representatives (“House”); and Pugliese, 12-557 August 14, 2012 Page 2 (3) Whether you would be permitted to lobby the Governor, Department Secretaries, and employees of the Office of the Governor and Departments under the Governor’s jurisdiction. 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. In the former capacity as a Legislative Specialist 1 for DCED, 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 DCED, you became 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 Pugliese, 12-557 August 14, 2012 Page 3 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 official/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 a 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. Pugliese, 12-557 August 14, 2012 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. The governmental body with which you are deemed to have been associated upon termination of your employment with DCED is DCED in its entirety. Therefore, for the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before DCED. Having established the above general principles, your specific questions shall now be addressed. With regard to your first and second questions, you are advised that Section 1103(g) of the Ethics Act would not restrict you from lobbying the Members and staff of the Senate or House as long as in performing the aforesaid activity(ies), you would not engage in prohibited representation before DCED during the first year following termination of your employment with DCED. In response to your third question, you are advised as follows. During the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would prohibit you from lobbying the Secretary of DCED or employees of DCED as such activity(ies) would constitute prohibited representation before DCED as delineated above. Section 1103(g) of the Ethics Act would not prohibit you from lobbying the Governor, Department Secretaries other than the Secretary of DCED, or employees of Departments under the Governor’s jurisdiction other than DCED, as long as in performing the aforesaid activity(ies), you would not engage in prohibited representation before DCED during the first year following termination of your employment with DCED. 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: In the former capacity as a Legislative Specialist 1 with the Pennsylvania Department of Community and Economic Development (“DCED”), 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 DCED, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. The former governmental body is DCED in its entirety. For the first year following termination of your employment with DCED, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before DCED. The restrictions Pugliese, 12-557 August 14, 2012 Page 5 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