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HomeMy WebLinkAbout13-510 ADVICE OF COUNSEL February 26, 2013 13-510 This responds to your letter of December 26, 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 an individual employed within the A Division of Commonwealth Agency B in the position of C under job code [number], with a working title of D, with regard to negotiating and accepting private employment with a business that provides or seeks to provide services relating to E. Facts: You are presently employed within the A Division of Commonwealth Agency B in the position of C under job code [number], with a working title of D. You have provided a copy of the official Commonwealth Position Description for your aforesaid position as well as an organizational chart of E, which documents are incorporated herein by reference. The job classification specifications for your aforesaid position have been obtained and are also incorporated herein by reference. You state that F of G is under consideration by H, and that you have no decision- making role in that process. You state that you might leave Commonwealth employment for employment in the private sector. You request a confidential advisory as to the restrictions of the Ethics Act that would apply to you if you would negotiate and accept private employment with a business that provides or seeks to provide services relating to E. You pose the following questions: (1) Whether it is possible to obtain a waiver from the Pennsylvania State Ethics Commission of applicable restrictions of the Ethics Act; (2) During such times as Section 1103(g) of the Ethics Act would be applicable to you, whether you would run afoul of Section 1103(g) if individuals other than you would solicit E to purchase or use products/materials developed by you, and if so, whether E could waive such prohibition; (3) During such times as Section 1103(g) of the Ethics Act would be applicable to you, whether the Ethics Act would prohibit E from seeking to purchase or use products/materials developed by you; Confidential Advice, 13-510 February 26, 2013 Page 2 (4) How the scope of the former governmental body and representation before the former governmental body would be interpreted in the context of F; and (5) How Sections 1103(a) and 1103(c) of the Ethics Act would apply if, while serving in your current Commonwealth position, you wish to negotiate for future employment with a private entity that may be engaged in I of E. 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 individual employed within the A Division of Commonwealth Agency B in the position of C under job code [number], with a working title of D, 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 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. Sections 1103(a) and 1103(j) of the Ethics Act provide: § 1103. Restricted activities (a)Conflict of interest.-- No public official or public employee shall engage in conduct that constitutes a conflict of interest. (j)Voting conflict.-- Where voting conflicts are not otherwise addressed by the Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties would be required to vote on a matter that would result in a conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of approval unattainable, then such members shall be permitted to vote if disclosures are made as otherwise provided herein. In the case of a three-member governing body of a political subdivision, where one member has abstained from voting as a result of a conflict of interest and the remaining two members of the governing body have cast Confidential Advice, 13-510 February 26, 2013 Page 3 opposing votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein. 65 Pa.C.S. §§ 1103(a), (j). The following terms 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. "Business." Any corporation, partnership, sole proprietorship, firm, enterprise, franchise, association, organization, self-employed individual, holding company, joint stock company, receivership, trust or any legal entity organized for profit. "Business with which he is associated." Any business in which the person or a member of the person's immediate family is a director, officer, owner, employee or has a financial interest. 65 Pa.C.S. § 1102. Pursuant to Section 1103(a) of the Ethics Act, a public official/public employee is prohibited 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 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. In each instance of a conflict of interest, a public official/public employee would be required to abstain from participation, which would include voting unless one of the statutory exceptions of Section 1103(j) of the Ethics Act would be applicable. Additionally, the disclosure requirements of Section 1103(j) of the Ethics Act would have to be satisfied in the event of a voting conflict. Confidential Advice, 13-510 February 26, 2013 Page 4 Sections 1103(b) and 1103(c) of the Ethics Act, 65 Pa.C.S. §§ 1103(b), (c), provide in part that no person shall offer or give to a public official/public employee anything of monetary value 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. Upon termination of employment with Commonwealth Agency 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 official/public employee himself, Confidential Opinion, 93-005, as well as a new governmental employer. Ledebur, Opinion 95-007. Confidential Advice, 13-510 February 26, 2013 Page 5 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. 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 employment with Commonwealth Agency B would be Commonwealth Agency B in its entirety and would not include private entity(ies) performing services relating to E. Therefore, for the first year following termination of your employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Agency B. Your specific questions shall now be addressed. In response to your first specific question, you are advised that the Ethics Act does not provide for waivers of the applicability of its restrictions, particularly the restrictions of Sections 1103(a), 1103(c), and 1103(g). The Pennsylvania State Ethics Commission does not have the authority to grant that which is not authorized by law. Cf., Whitlock, Opinion 04-015; Ziegler, Opinion 98-001; Long, Opinion 97-010; Richardson, Opinion 93-006. Confidential Advice, 13-510 February 26, 2013 Page 6 In response to your second specific question, you are advised that during such times as Section 1103(g) of the Ethics Act would be applicable to you, you would not run afoul of Section 1103(g) if individuals other than you would solicit E to purchase or use products/materials developed by you as long as your involvement would not be made known to Commonwealth Agency B and you would not permit your name or any other information identifying you to be provided to Commonwealth Agency B in the course of such activity(ies). You are further advised that E does not have the authority to grant waivers of the restrictions of the Ethics Act. You have not established legal standing to submit your third question as to the conduct of E. However, you are generally advised that the restrictions of Section 1103(g) of the Ethics Act only apply to former public officials and former public employees. In response to your fourth specific question, you are advised that the application of Section 1103(g) of the Ethics Act would not vary in the context of F. The Ethics Act makes no distinction in that regard. As stated above, the governmental body with which you would be deemed to have been associated upon termination of employment with Commonwealth Agency B would be Commonwealth Agency B in its entirety and would not include private entity(ies) performing services relating to E. The restrictions of Section 1103(g) have been set forth above. In response to your fifth specific question, you are advised as follows. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position, or confidential information received by being in such position, for the private pecuniary benefit of yourself, such as, for example, to advance an opportunity of employment with a private entity that may be engaged in I of E. Pursuant to Section 1103(c) of the Ethics Act, you would be prohibited from soliciting or accepting anything of monetary value, including a promise of future employment, based on an understanding that your vote, official action or judgment would be influenced thereby. 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 J. Conclusion: As an individual employed within the A Division of Commonwealth Agency B in the position of C under job code [number], with a working title of D, 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 employment with Commonwealth Agency B, you would become a “former public employee” subject to Section 1103(g) of the Ethics Act. The governmental body with which you would be deemed to have been associated upon termination of employment with Commonwealth Agency B would be Commonwealth Agency B in its entirety and would not include private entity(ies) performing services relating to E. For the first year following termination of employment with Commonwealth Agency B, Section 1103(g) of the Ethics Act would apply and restrict “representation” of a “person” before Commonwealth Agency B. The restrictions as to representation outlined above must be followed. The application of Section 1103(g) of the Ethics Act would not vary in the context of F. The Ethics Act makes no distinction in that regard. Pursuant to Section 1103(a) of the Ethics Act, you would be prohibited from using the authority of your public position, or confidential information received by being in such position, for the private pecuniary benefit of yourself, such as, for example, to Confidential Advice, 13-510 February 26, 2013 Page 7 advance an opportunity of employment with a private entity that may be engaged in I of E. Pursuant to Section 1103(c) of the Ethics Act, you would be prohibited from soliciting or accepting anything of monetary value, including a promise of future employment, based on an understanding that your vote, official action or judgment would be influenced thereby. 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