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HomeMy WebLinkAbout12-580 Taylor ADVICE OF COUNSEL November 28, 2012 Keith Taylor 1030 Hoff Road Hanover, PA 17331 12-580 Dear Mr. Taylor: This responds to your letter dated October 16, 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 former Park Operations Manager 1 with the Pennsylvania Department of Conservation and Natural Resources (“DCNR”) who, following retirement from the Commonwealth of Pennsylvania, has provided services to DCNR as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1). Facts: You request an advisory from the Pennsylvania State Ethics Commission regarding the post-employment restrictions of the Ethics Act. You have submitted facts which may be fairly summarized as follows. In April 2012, you retired from your employment as a Park Operations Manager 1 with DCNR. You have submitted copies of your official DCNR position description and organization charts pertaining to DCNR, which documents are incorporated herein by reference. A copy of the job classification specifications for the position of Park Operations Manager 1 (job code 54350) has been obtained and is also incorporated herein by reference. Following your retirement from the Commonwealth, you returned to work with DCNR as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), to assist the executive staff with the budget and your replacement as section chief. Your period of service as an annuitant with DCNR under the 95-day Annuitant Program was to be terminated on October 31, 2012. You state that you have been offered a temporary part-time job with US eDirect, which offers software solutions for permits and licenses, campgrounds, marinas, venues, parks and recreation, team sports, leagues, and golf courses. You state that US eDirect does not currently have any contracts with the Commonwealth and that US eDirect’s client base consists mainly of local and county governments along with a few private sector companies. You further state that US eDirect executed its first state client Taylor, 12-580 November 28, 2012 Page 2 reservation system contract with Minnesota in January 2012 and that US eDirect plans to bid on a Missouri reservation contract which is expected to be released in 2013. Pennsylvania recently executed a reservation system contract with another business. That contract expires in December of 2015 and has extension options, which you expect to be exercised. You state that US eDirect did not bid on Pennsylvania’s contract in 2010. The job that you have been offered with US eDirect would be fifteen hours per week for six months starting in November 2012, and your part-time status could potentially be extended depending upon the needs of US eDirect. You state that your primary duties would involve providing assistance and knowledge from a field-user perspective to improve US eDirect’s software to meet the needs of federal and state clients. You would work with US eDirect’s membership, recreation, point of sale, and activity modules to accomplish certain goals. You state that you would also provide some input for US eDirect’s response to the Missouri request for proposals for a turnkey reservation program. Based upon the above submitted facts, you ask whether you would violate the Ethics Act or the State Adverse Interest Act if you would accept employment with US eDirect. 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. In the former capacity as a Park Operations Manager 1 with DCNR, 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 retiring from the Commonwealth, you became a "former public employee" subject to Section 1103(g) of the Ethics Act. It is clear that when a former public employee returns to service as an annuitant to again perform services falling within the Ethics Act’s definition of “public employee” (see, 65 Pa.C.S. § 1102), the annuitant again becomes a “public employee” subject to the Ethics Act. See, Graves, Opinion 00-009; McGlathery, Opinion 00-004. The submitted facts are insufficient to enable a conclusive determination as to whether, upon returning to work with DCNR as an annuitant, your duties/authority were such that you again became a “public employee” subject to the Ethics Act. Without that information, this Advice cannot determine the particular time at which the restrictions of Section 1103(g) most recently began to apply to you as a former “public employee” (that is, April 2012 or October 31, 2012). However, this Advice will provide the requested guidance to you by generally referring to the “time when you most recently terminated Taylor, 12-580 November 28, 2012 Page 3 service with DCNR as a public employee subject to the Ethics Act,” without specifying a particular date. At the time when you most recently terminated service with DCNR as a public employee subject to the Ethics Act, you became a former public employee subject to the restrictions of 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 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 Taylor, 12-580 November 28, 2012 Page 4 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. 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. At the time when you most recently terminated service with DCNR as a public employee subject to the Ethics Act, you became a “former public employee” subject to Section 1103(g) of the Ethics Act, and the one-year period of applicability of Section 1103(g) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is DCNR in its entirety. Therefore, until the expiration of a full one-year period from the time when you most recently terminated service with DCNR as a public employee subject to the Ethics Act, or until you would resume providing services to DCNR under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of “public employee,” whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a “person” before DCNR with promised or actual compensation as set forth above. Having set forth the restrictions of Section 1103(g) of the Ethics Act, your specific question shall now be addressed. You are advised that Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with US eDirect. However, when Section 1103(g) of the Taylor, 12-580 November 28, 2012 Page 5 Ethics Act would be applicable, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve prohibited representation before DCNR as outlined above. You are further advised that the State Ethics Commission does not have the statutory jurisdiction to administer or interpret the State Adverse Interest Act. 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 or the State Adverse Interest Act. Conclusion: In the former capacity as a Park Operations Manager 1 with the Pennsylvania Department of Conservation and Natural Resources (“DCNR”), 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 retiring from Commonwealth employment in April 2012, you became a “former public employee” subject to Section 1103(g) of the Ethics Act. The submitted facts are insufficient to enable a conclusive determination as to whether, upon returning to work with DCNR as an annuitant under the 95-day “return to state service” provision at 71 Pa.C.S. § 5706(A.1) (“the 95-day Annuitant Program”), your duties/authority were such that you again became a “public employee” subject to the Ethics Act. At the time when you most recently terminated service with DCNR as a public employee subject to the Ethics Act, you became a “former public employee” subject to Section 1103(g) of the Ethics Act, and the one-year period of applicability of Section 1103(g) commenced. The governmental body with which you are deemed to have been associated upon termination of the aforesaid service is DCNR in its entirety. Until the expiration of a full one-year period from the time when you most recently terminated service with DCNR as a public employee subject to the Ethics Act, or until you would resume providing services to DCNR under the 95-day Annuitant Program in a position falling within the Ethics Act’s definition of “public employee,” whichever would come first, Section 1103(g) of the Ethics Act would apply to restrict you from engaging in conduct that would constitute the representation of a “person” before DCNR with promised or actual compensation as set forth above. The restrictions as to representation outlined above must be followed. Section 1103(g) of the Ethics Act would not prohibit you from accepting employment with US eDirect. However, when Section 1103(g) of the Ethics Act would be applicable, Section 1103(g) would prohibit you from performing any job duty(ies) that would involve prohibited representation before DCNR as outlined above. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Act. Taylor, 12-580 November 28, 2012 Page 6 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